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Common use of Indemnification and Insurance Clause in Contracts

Indemnification and Insurance. (a) The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation and the by-laws of the Company on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who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 and hold harmless, each 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 reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims and

Appears in 1 contract

Samples: Merger Agreement (Bush Boake Allen Inc)

Indemnification and Insurance. (a) The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially Company shall, to the same effect as those set forth in maximum extent permitted by law, indemnify and hold the articles of incorporation 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") harmless from all costs, expenses, liabilities, claims, damages and losses, including without limitation, attorneys' fees and the by-laws 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 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 subsidiary of the Company, unless 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 modification request) any and all expenses, including without limitation, any and all attorneys' fees and the cost of any investigation and preparation incurred in connection with any matter for which such LLCP Party is required after the Effective Time by law. (b) Parent shall cause the Surviving Corporationor may be entitled to indemnification hereunder; provided, that, if and to the fullest extent that a court of competent jurisdiction finally determines that such LLCP Party is not permitted to be indemnified with respect to such matter under applicable law, the Company shall be entitled to be reimbursement of any expenses so advanced. The Company shall also indemnify each LLCP Party from and against any and all Liabilities and Costs incurred in connection with any claim or action brought to enforce such LLCP Party's rights under this SECTION 1.5, or under applicable law or under the Surviving CorporationCompany's articles Articles of incorporation Incorporation or by-laws Bylaws now or any indemnification agreement 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 LLCP Party in such proportion as is appropriate to reflect not only the relative benefits received by the Company, on the one hand, and LLCP, on the other hand, but also the relative fault of each, as well as any other equitable considerations. The Company's reimbursement, indemnity and contribution obligations shall be in addition to any liability the Company may otherwise have at law or under any other agreement, including without limitation, the Purchase Agreement, and 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, 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 date hereof, to indemnify and hold harmlessshall thereafter maintain in effect, each present and former director, officer one or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid more insurance policies providing at least $10,000,000 in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case insurance coverage for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereofdirector liability, including settlement, coverage for claims under federal and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andstate securities laws.

Appears in 1 contract

Samples: Investor Rights Agreement (Levine Leichtman Capital Partners Ii Lp)

Indemnification and Insurance. (a) The articles TOTAL agrees to indemnify and hold harmless Amyris from any and all liability, loss (including attorneys’ fees), or damage they may suffer as the result of incorporation and by-laws claims, demands, costs, or judgments against them (collectively, “Damages”) to the extent arising out of the Surviving Corporation shall contain provisions (i) any actions or omissions of TOTAL or its subcontractors with respect to indemnification substantially the performance of the Services, (ii) gross negligence or willful misconduct on the part of TOTAL or its subcontractors with respect to the same effect as those set forth performance of the Services, (iii) actual or alleged infringement or misappropriation of a third party’s intellectual property through use of material (including cells and strains) provided by or on behalf of TOTAL or its Affiliates to Amyris for use in the articles Services, or (iv) a breach of incorporation and the by-laws of the Company on the date hereofany applicable federal, which provisions shall not be amended, modified state 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 local law by TOTAL or agents of the Company, unless such modification is required after the Effective Time by lawits subcontractors. (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, Amyris agrees to indemnify and hold harmless, each present harmless TOTAL from any and former director, officer all Damages to the extent arising out of any (i) actions or employee omissions of Amyris or its subcontractors with respect to the performance of the Company Services, (ii) gross negligence or willful misconduct on the part of Amyris or its subcontractors with respect to the performance of the Services or (iii) a breach of any applicable federal, state or local law by Amyris or its subcontractors. (c) For the avoidance of its Subsidiaries doubt, this Section does not cover or address any liability that could be an indemnifiable claim under the Sublease. (collectively, d) Each Party’s agreement to indemnify and hold the "INDEMNIFIED PARTIES"other harmless is conditioned on the indemnified Party (i) against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with providing written notice to the indemnifying Party of any claim, action, suit, proceeding demand or investigation, whether civil, criminal, administrative or investigative, action (x“Claim”) arising out of or pertaining the 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 transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring indemnifying Party, at or prior to the Effective Time ("Indemnification Liabilities")indemnifying Party’s reasonable expense, to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereofinvestigation of, in each case preparation for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate in the defense of any such matterClaim; and (iv) not compromising or settling such Claim without the indemnifying Party’s written consent. An Indemnified The indemnifying Party shall have not settle a right to participate Claim in (but not control) the defense of any such matter with its own counsel and at its own expense. Notwithstanding the right manner that admits fault on behalf of the Surviving Corporation to assume indemnified Party or imposes injunctive relief on the indemnified Party without such Party’s prior written consent. (e) Each of TOTAL and control Amyris shall maintain the defense following insurance coverage provided by an admitted insurer with an AM Best rating of such litigation, claim A and a financial size rating of VII or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if greater: (i) Workers’ Compensation insurance including Occupational Disease coverage in accordance with the use laws of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel federal, state and local governments having jurisdiction(s) over Emeryville, CA and Employers’ Liability Insurance (including Borrowed Servant and Voluntary Compensation) with a conflict limit of interest, not less than $1,000,000 for each accident; (ii) the defendants inCommercial General Liability Insurance with a combined single limit of $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 targets of, any such litigation, claim death and for loss of or proceeding shall have been advised by counsel that there may be legal defenses available damage to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or property; (iii) the Surviving Corporation shall not have employed counsel satisfactory 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 such Indemnified Partybodily injury, in the exercise 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 Indemnified Party's reasonable judgment, to represent such Indemnified Party within coverages listed above; and (v) All policies shall provide a reasonable time after notice waiver of subrogation in favor of the institution of such litigation, claim or proceedingother Party. The Surviving Corporation Commercial General Liability policy shall not settle any such matter unless (i) name the Indemnified other Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) as additional insured solely for the terms of the settlement provide that the Indemnified liabilities assumed in this agreement. Each Party shall have no responsibility for the discharge be notified of any settlement amount and impose no other obligations material change or duties on the Indemnified Party and the 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 cancellation of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except insurance according to the extent such failure materially prejudices such Surviving Corporation)policy provisions. The Indemnified Upon request, the Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) shall provide certificates of insurance evidencing compliance with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andthis agreement.

Appears in 1 contract

Samples: Pilot Plant Services Agreement (Amyris, Inc.)

Indemnification and Insurance. (a) The articles of incorporation and byBy-laws Laws of the Surviving Corporation shall contain honor, and Parent shall cause the Surviving Corporation to honor, the provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation and the byBy-laws Laws of the Company on immediately prior to the date hereofEffective Time, which provisions shall not be amended, modified repealed or otherwise repealed modified for a period of six years after 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) 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 harmless, and, after the Effective Time, Parent shall and shall cause the Surviving CorporationCorporation to, to the fullest extent permitted under applicable law or under the Surviving Corporation's articles Certificate of incorporation Incorporation or byBy-laws Laws or any applicable indemnification agreement in effect as of the date hereofagreement, to indemnify indemnify, defend and hold harmless, each 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 reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (xi) arising out of or pertaining to the transactions contemplated by this Agreement or (yii) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time Time; provided, however, that in connection with criminal acts the indemnification provided by this Section 5.9 shall only apply provided the Indemnified Party had no reasonable cause to believe that his/her conduct was criminal. ("Indemnification Liabilities"), c) Parent shall and shall cause the Surviving Corporation to honor and fulfill in all respects the same extent as provided in obligations of the Company pursuant to indemnification agreements with the Company's articles directors, officers and employees existing at or before the Effective Time and to the extent such Indemnified Parties are insured pursuant to the terms of incorporation a directors and officers liability policy at or by-laws or any applicable contract or agreement as immediately prior to the effective time, Parent and Surviving Corporation shall keep such policy in effect on the date hereof, in each case force for a period of not less than six years after or purchase a "tail" which provides coverage for such period. (d) This Section shall survive the date hereof. In consummation of the event of any such claimMerger, action, suit, proceeding or investigation (whether arising before or after is intended to benefit the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective TimeCompany, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 investigationParties, shall promptly notify be binding on all successors and assigns of Parent and the Surviving Corporation (but and shall be enforceable by the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims and.

Appears in 1 contract

Samples: Merger Agreement (Netgain Development Inc)

Indemnification and Insurance. (a) The articles of incorporation From and by-laws of after the Effective Time, 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 CorporationCorporation to) indemnify, 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 defend and hold harmless, each present and former directoradvance expenses to, officer the individuals who at or employee prior to the Effective Time were directors or officers of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIESIndemnitees") 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 harmless each Indemnitee against and from any costs or expenses (including reasonable attorneys' feesfees of counsel of nationally recognized reputation), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising to the extent such claim, action, suit, proceeding or investigation arises out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect pertains to any acts action or omissions occurring at 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 Time, including in connection with the Transactions; and ("Indemnification Liabilities"), to ii) pay in advance of the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event final disposition of any such claim, action, suit, proceeding or investigation the reasonable expenses (whether arising before or after the Effective Timeincluding reasonable fees of counsel of nationally recognized reputation) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate in the defense Indemnitee upon receipt 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 an undertaking by or on behalf of such litigation, claim or proceeding, Indemnitee to repay such Indemnified Party amount if it shall have the right ultimately be determined that such Indemnitee is not entitled to employ separate counsel and to participate in the defense be indemnified (if receipt of such litigation, claim or proceeding, an undertaking is required under applicable Law). Parent and the Surviving Corporation shall bear be entitled, but not obligated to, participate in the reasonable fees, costs defense and expenses settlement 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 litigationmatter; provided, claim or proceeding shall have been advised by counsel however, 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) Parent and the Surviving Corporation shall not have employed counsel satisfactory be liable for any settlement agreed to such Indemnified Party, in or effected without Parent's and the exercise of the Indemnified PartySurviving Corporation'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 written consent (i) the Indemnified Party gives prior 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, or 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 (ii) the terms selected by a plurality of the settlement provide that the Indemnified Party shall have no responsibility applicable Indemnitees) for the discharge of all Indemnitees in any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party jurisdiction with respect to any single action except to the extent that two or more of such matterIndemnitees shall have an actual conflict of interest in such action. In no event Notwithstanding anything to the contrary contained in this Section 5.8(b) or elsewhere in this Agreement, Parent shall not settle or compromise or consent to the Surviving Corporation entry of any judgment or otherwise seek termination with respect to any claim, action, suit, proceeding or investigation for which indemnification may be liable for any settlement effected without its prior written consent. Any Indemnified Party wishing to claim indemnification sought under this Section 6.06(b)5.8(b) unless such settlement, upon learning compromise, consent or termination includes an unconditional release of any all Indemnitees from all liability arising out of such claim, action, suit, proceeding or investigation. (c) Parent will provide, shall promptly notify Parent and or cause the 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 Company Schedule (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b"Existing D&O Policy") except with an insurance and indemnification policy that provides coverage for events occurring at or prior to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm Effective Time (plus the "D&O Insurance") that is no more less favorable than one local counsel in any jurisdiction) with respect to each such matter unless there isthe Existing D&O Policy or, under applicable standards of professional conductif substantially equivalent insurance coverage is unavailable, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrarybest available coverage; provided, in the event however, that (i) that any claim or claims for indemnification are asserted or made within Parent's obligation to maintain the D&O Insurance will be deemed fully satisfied if the Existing D&O Policy remains in full force and effect throughout such six-year period, all rights (ii) in the event 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 indemnification pay an aggregate amount of premiums for replacement D&O Insurance for such six-year period in respect excess of any 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 claim replacement D&O Insurance for such six-year period exceed the Cap Amount, Parent or claims the Surviving Corporation shall continue until be obligated to obtain a policy with the disposition 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 any this Section 5.8. The provisions of this Section 5.8 are intended to be for the benefit of each Indemnitee, his heirs and all such claims andhis representatives.

Appears in 1 contract

Samples: Merger Agreement (Broadvision Inc)

Indemnification and Insurance. (a) The articles of incorporation From 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 CorporationTime, to the fullest extent permitted under applicable law or under Laws, Parent shall, and shall cause the Surviving Corporation's articles of incorporation or by-laws or any indemnification agreement in effect as of the date hereofEntity to, to (i) indemnify and hold harmless, harmless each present and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") Indemnified Person against any reasonable costs or expenses (including reasonable attorneys' ’ fees and all other reasonable costs, expenses and obligations (including experts’ fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and binding costs, as well as telecommunications, postage and courier charges) paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to investigate, defend, be a witness in or participate in, any Proceeding, including any Proceeding relating to a claim for indemnification or advancement brought by an Indemnified Person), judgments, fines, losses, claims, damagesdamages or liabilities, liabilities penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) in connection with any claimactual or threatened Proceeding, actionand, suitupon receipt by Parent of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be determined in a final and non-appealable judgment entered by a court of competent jurisdiction that the Indemnified Person is not entitled to be indemnified, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out provide advancement of or pertaining to the transactions contemplated by this Agreement or (y) otherwise 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 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) The 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 omissions occurring at or prior to the Effective Time with respect to Indemnified Persons ("Indemnification Liabilities")provided, that the Surviving Entity may substitute therefor policies with reputable carriers of at least the same coverage containing terms and conditions that are no less favorable to the same extent as provided Indemnified Persons); provided, however, that in no event shall the Company's articles Surviving Entity be required to expend pursuant to this Section 6.6(b) more than an amount per year equal to 300% of incorporation or by-laws or any applicable contract or agreement as in effect on current annual premiums paid by the date hereof, in each case Partnership for a period of six years after such insurance (the date hereof“Maximum Amount”). In the event of any such claimthat, action, suit, proceeding or investigation (whether arising before or after but for the Effective Time) and subject proviso to the specific terms immediately preceding sentence, the Surviving Entity would be required to expend more than the Maximum Amount, the Surviving Entity shall obtain the maximum amount of any indemnification contractsuch 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 (i) after but shall be under no obligation to), prior to the Effective Time, purchase a prepaid “tail policy” with respect to acts or omissions occurring or alleged to have occurred prior to the Effective Time that were committed or alleged to have been committed by such Indemnified Persons in their capacity as such; provided, that in no event shall the cost of such policy exceed six times the Maximum Amount. (c) The rights of any Indemnified Person under this Section 6.6 shall be in addition to any other rights such Indemnified Person may have under the Parent Organizational Documents, the Organizational Documents of each of the Partnership, the General Partner, the Surviving Corporation Entity or any Subsidiary of Parent or the Partnership, any indemnification agreements, or the DLLCA or DRULPA. The provisions of this Section 6.6 shall assume survive the consummation of the transactions contemplated by this Agreement and direct all the defense thereof, including settlement, and are expressly intended to benefit each of the Indemnified Parties shall cooperate in the defense of any such matterPersons and their respective heirs and Representatives. 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 If Parent, the Surviving Corporation to assume and control Entity and/or the defense General Partner, or any of such litigation, claim their respective successors or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if assigns (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel consolidates with a conflict of interest, (ii) the defendants in, or targets of, merges into 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 delayedPerson, or (ii) the terms transfers or conveys all or substantially all of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of their businesses or assets to any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to Person, then, in each 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)case, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conductnecessary, a conflict on any significant issue between proper provision shall be made so that the positions successors and assigns of any two or more Indemnified Parties. Notwithstanding anything to Parent, the contrarySurviving Entity and/or the General Partner shall assume the obligations of Parent, the Surviving Entity and the General Partner set forth in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andthis Section 6.6.

Appears in 1 contract

Samples: Merger Agreement (CONSOL Energy Inc.)

Indemnification and Insurance. 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 claims, suits, losses, damages, fines, penalties, expenses (including, but not limited to, attorney's fees) or actions by third parties against Licensee alleging trademark infringement arising out of or based upon Licensee's authorized use of any of the Licensed Trademarks in the Territory; provided, however, that Licensee gives Licensor prompt written notice of such suit, claim or action and cooperates fully with Licensor in defending the 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 actions by third parties arising out of or based upon: (a) The articles Licensee's or its Manufacturing Agents' processing, distribution or sale 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 Products bearing 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.Licensed Trademark; or (b) Parent shall cause any breach by Licensee or its Manufacturing Agents of their obligations hereunder; or (c) any proceeding brought by any person, governmental agency or consumer group in connection with the Surviving CorporationProducts processed, to the fullest extent permitted under sold or distributed by Licensee or its Manufacturing Agents bearing or using a Licensed Trademark; or (d) any violations of any applicable law or under regulation or civil claims relating to the Surviving Corporationmanufacture, processing, sale, distribution, promotion or advertising of Products bearing or using a Licensed Trademark, unless attributable to Licensor's articles of incorporation or by-laws or any indemnification agreement in effect as of the date hereof, to indemnify and hold harmless, each present and former director, officer or employee of the Company or any breach of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by obligations under this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereofAgreement. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate Licensor may participate in the defense of any such matterlitigation. Section 7.3. An Indemnified Party Licensee shall have be solely responsible for the acts and ----------- omissions of those with whom it or its Manufacturing Agents contract for any aspect of the processing, distribution or sale of Products bearing or using a right Licensed Trademark. Section 7.4. In order to participate in (but not control) assure its ability to discharge its ----------- obligations to Licensor, Licensee agrees that it will maintain throughout the defense of any such matter with its own counsel and Term at its own expense. Notwithstanding , comprehensive general liability insurance, including product liability insurance and contractual liability coverage specifically endorsed to cover the right of the Surviving Corporation to assume and control the defense of such litigationindemnity provisions in this Agreement, claim or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel carrier satisfactory to such Indemnified PartyLicensor, in the exercise a minimum amount of the Indemnified Party's reasonable judgmentFive Million Dollars ($5,000,000.00) combined single limit for each single occurrence, 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 consentfor bodily injury and property damage, which shall not be unreasonably withheld or delayed, or designate Licensor as an additional insured therein. The policy shall provide for thirty (ii30) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to such matter. In no event shall the Surviving Corporation be liable for any settlement effected without its days prior written consent. Any Indemnified Party wishing notice 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 Licensor from the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, insurer in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any material modification, cancellation or termination. Licensee shall deliver certificates of such claim or claims shall continue until insurance coverage to Licensor prior to the disposition sale and/or distribution of any and all such claims andProducts or bearing a Licensed Trademark.

Appears in 1 contract

Samples: Trademark License Agreement (Eagle Family Foods Inc)

Indemnification and Insurance. (a) The articles of incorporation From and by-laws of after the Effective Time, the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation shall, 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 CorporationCorporation to, to the fullest extent permitted by applicable Law, honor and fulfill in all respects the obligations of the Company and its Subsidiaries under applicable law or under (i) the Surviving Corporation's articles certificate of incorporation and bylaws (or by-laws or any indemnification agreement similar organizational documents) of the Company and its Subsidiaries in effect as of the date hereofof this Agreement with respect to exculpation from liability, indemnification and advancement and reimbursement of expenses and (ii) any and all indemnification agreements between the Company or any of its Subsidiaries and any 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 harmless, harmless each present 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 "INDEMNIFIED PARTIES"“Indemnitees”) against any costs or expenses (including reasonable attorneys' fees)with respect to all claims, liabilities, losses, damages, judgments, fines, lossespenalties, claims, damages, liabilities and costs (including amounts paid incurred by such Indemnitee in settlement or compromise) and expenses (including reasonable fees and expenses of legal counsel) in connection with any claim, action, suit, proceeding or investigation, Action (whether civil, criminal, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (x1) arising out the fact that an Indemnitee is or was a director, officer or employee of the Company or pertaining 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 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 (including 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 time prior to, the Effective Time (including any Action relating in whole or in part to the transactions contemplated by Transactions or relating to the enforcement of this Agreement provision or any other indemnification, advancement or reimbursement right of any Indemnitee) and (yB) otherwise with 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 to any of indemnification, advancement and reimbursement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles Company Organizational Documents and the organizational documents of incorporation or by-laws or any applicable contract or agreement such Subsidiaries as in effect on the date hereofof this Agreement. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, unless otherwise required by Law, the 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 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). (c) The Company shall purchase, at or 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 directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the 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 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 case 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 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 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 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, the Surviving Corporation or any of their respective successors or assigns (A) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (B) transfers or conveys all or substantially all of its properties and assets to any Person, or (ii) Parent or any of its successors or assigns dissolves the Surviving Corporation, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation shall assume all of the obligations thereof set forth in this Section 5.06. (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 Corporation’s obligations under this Section 5.06 shall continue in full force and effect for a period of six years after from the date hereof. In the event of Effective Time; provided that if any such claimthreatened or actual litigation, actionclaim or proceeding relating to any acts or omissions covered under this Section 5.06 (each, suit, proceeding or investigation a “Claim”) (whether arising before before, at or after the Effective Time) and subject is brought against an Indemnitee on or prior to the specific terms sixth anniversary of any indemnification contract, (i) after the Effective Time, the Surviving Corporation provisions of this Section 5.06 shall assume continue in effect until the full and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 final resolution of such litigation, claim or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andClaim.

Appears in 1 contract

Samples: Merger Agreement (PhenomeX Inc.)

Indemnification and Insurance. (a) The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions 32 A. CONTRACTOR agrees to indemnify, defend with respect to indemnification substantially to the same effect as those set forth counsel approved in the articles of incorporation and the by-laws of the Company on the date hereofwriting by COUNTY, 33 which provisions approval shall not be amendedunreasonably withheld, modified or otherwise repealed and hold COUNTY, its elected and appointed 34 officials, officers, directors, employees, agents and those special districts and agencies for a period which 35 COUNTY’s Board of six years after Supervisors acts as the Effective Time in governing Board (“COUNTY INDEMNITEES”) harmless 36 from any manner that would adversely affect the rights thereunder as claims, liabilities obligations, judgments, causes of actions, costs and expenses (including 37 reasonable attorneys’ fees) which are asserted against COUNTY arising out of the Effective Time use of individuals who at the Effective Time were directorsSystem 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 negligence, recklessness, or willful misconduct of 3 CONTRACTOR, its officers, employees or agents agents, except that CONTRACTOR shall not be obligated to 4 indemnify COUNTY INDEMNITEES under this sentence to the extent that the claim arose solely from 5 COUNTY’s failure to use the System 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, liabilities obligations, judgments, causes of 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 Companyuse of the System by COUNTY regardless of CONTRACTOR’S, unless such modification or its officers’, employees’ or 11 agents’, negligence or misconduct. If judgment is required after entered against CONTRACTOR and COUNTY by a 12 court of competent jurisdiction because of the Effective Time 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 lawthe court. Neither party shall request a jury 15 apportionment. (b) Parent shall cause the Surviving Corporation16 B. COUNTY agrees to indemnify, 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 defend and hold harmlessCONTRACTOR, each present its officers, employees, 17 agents, directors, members, shareholders and/or affiliates harmless from any claims, liabilities, 18 obligations, judgments, causes of actions, costs and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") against any costs or expenses (including reasonable attorneys' attorney’s fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) 19 which are asserted against CONTRACTOR arising out of the use of the System by COUNTY or pertaining arising 20 out of or resulting from COUNTY’s performance under this Agreement where such injury or claim is 21 caused by the negligence, 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 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 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 31 related to services provided by either party pursuant to this Agreement within thirty (30) calendar days 32 of notice thereof, and in the event the indemnifying party is subsequently named party to the transactions contemplated by litigation, 33 each party shall cooperate with the indemnifying party in its defense. 34 D. Prior to the provision of services under 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 shall be covered under CONTRACTOR’s insurance as an 6 Additional Insured or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), maintain insurance subject to the same extent terms and conditions as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case set forth herein for a period of six years after the date hereof7 CONTRACTOR. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation CONTRACTOR shall not allow subcontractors to work if subcontractors have employed counsel satisfactory less 8 than the level of coverage required by COUNTY from CONTRACTOR under this agreement. It is the 9 obligation of CONTRACTOR to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after provide notice of the institution insurance requirements to every subcontractor 10 and to receive proof of such litigationinsurance 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) at any reasonable time. 13 F. All self-insured retentions (SIRs) and deductibles shall be clearly stated on the Certificate of 14 Insurance. If no SIRs or deductibles apply, claim or proceeding. The Surviving Corporation shall not settle any such matter unless indicate this on the Certificate of Insurance with a zero (i0) 15 by the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) appropriate line of coverage. 16 G. If CONTRACTOR fails to maintain insurance acceptable to the terms of the settlement provide that the Indemnified Party shall have no responsibility COUNTY for the discharge full term of any settlement amount and impose no other obligations or duties on 17 this Agreement, the Indemnified Party and the 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 COUNTY may terminate this Section 6.06(b), upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andAgreement.

Appears in 1 contract

Samples: Agreement for Provision of System Application and Technical Upgrade Services

Indemnification and Insurance. (a) The articles of incorporation From 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 CorporationTime, to the fullest extent permitted under applicable law or under Laws, Parent and the Surviving Corporation's articles of incorporation or by-laws or any indemnification agreement in effect as of the date hereof, Entity jointly and severally agree to (i) indemnify and hold harmless, each present and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") harmless against any reasonable costs or expenses (including reasonable attorneys' ’ fees and all other reasonable costs, expenses and obligations (including experts’ fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and binding costs, as well as telecommunications, postage and courier charges) paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to investigate, defend, be a witness in or participate in, any Proceeding, including any Proceeding relating to a claim for indemnification or advancement brought by an Indemnified Person), judgments, fines, losses, claims, damagesdamages or liabilities, liabilities penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) in connection with any claimactual or threatened Proceeding, actionand, suitupon receipt by Parent of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be determined in a final and non-appealable judgment entered by a court of competent jurisdiction that the Indemnified Person is not entitled to be indemnified, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out provide advancement of or pertaining to the transactions contemplated by this Agreement or (y) otherwise 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 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) 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 Effective Time with respect to Indemnified Persons ("Indemnification Liabilities")provided, that Parent may substitute therefor policies with reputable carriers of at least the same coverage containing terms and conditions that are no less favorable to the same extent as provided Indemnified Persons); 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 Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof“Maximum Amount”). In the event of any such claimthat, action, suit, proceeding or investigation (whether arising before or after but for the Effective Time) and subject proviso to the specific terms immediately preceding sentence, Parent would be required to expend more than the Maximum Amount, Parent shall obtain the maximum amount of any indemnification contractsuch 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 (i) after but shall be under no obligation to), prior to the Effective Time, purchase a “tail policy” with respect to acts or omissions occurring or alleged to have occurred prior to the Surviving Corporation Effective Time that were committed or alleged to have been committed by such Indemnified Persons in their capacity as such; provided, that in no event shall assume and direct all the defense thereof, including settlement, cost of such policy exceed the Maximum Amount. (c) The rights of any Indemnified Person under this Section 6.7 shall be in addition to any other rights such Indemnified Person may have under the Organizational Documents of the Partnership and the Indemnified Parties General Partner, any indemnification agreements, or the DLLCA and DRULPA. The provisions of this Section 6.7 shall cooperate in survive 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 consummation of the Surviving Corporation transactions contemplated by this Agreement and are expressly intended to assume benefit each of the Indemnified Persons and control their respective heirs and representatives. If Parent and/or the defense General Partner, or any of such litigation, claim their respective successors or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if assigns (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel consolidates with a conflict of interest, (ii) the defendants in, or targets of, merges into 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 delayedPerson, 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 terms of the settlement provide extent necessary, a proper provision shall be made so that the Indemnified Party successors and assigns of Parent and/or the General Partner shall have no responsibility for assume the discharge obligations of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under General Partner set forth in this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims and6.7.

Appears in 1 contract

Samples: Merger Agreement (Ugi Corp /Pa/)

Indemnification and Insurance. (a) The articles Immediately after the Effective Time, the certificate of incorporation and by-laws of the Surviving Corporation shall will contain provisions with respect to exculpation and indemnification substantially that are at least as favorable to the same effect present and former officers and directors of Xxxxxx and its Subsidiaries (each an “Indemnified Party”) as those set forth contained in the articles of incorporation Xxxxxx Charter and the byXxxxxx By-laws of the Company as in effect on the date hereof, which provisions shall will not be amended, modified repealed or otherwise repealed modified for a period of six years after from the Effective Time in any manner that would adversely affect the rights thereunder as of individuals who, immediately prior to the Effective Time of individuals who at the Effective Time Time, were directors, officers, employees or agents of the CompanyXxxxxx, unless such modification is required after the Effective Time by law. (b) Parent . ADC 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, Corporation to indemnify and hold harmlessharmless each Indemnified Party against all claims, each present and former directorlosses, officer or employee of the Company or any of its Subsidiaries (collectivelyliabilities, the "INDEMNIFIED PARTIES") against any costs or expenses (including reasonable attorneys' fees)damages, judgments, finesinquiries, lossesfines and reasonable fees, claimscosts and expenses, damages, liabilities including attorneys’ fees and amounts paid in settlement disbursements incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of actions taken by them in their capacity as officers or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring directors at or prior to the Effective Time ("Indemnification Liabilities"including in connection with this Agreement and the transactions contemplated hereby), or 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 same fullest extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case permitted under Applicable Law for a period of six years after the date hereofEffective Time. In Each Indemnified Party shall be entitled to advancement of expenses incurred in the event defense of any such claim, action, suit, proceeding or investigation (whether arising before from the Surviving Corporation within ten Business Days of receipt of the Surviving Corporation from the 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 Surviving Corporation shall settle, compromise or after the Effective Time) and subject consent to the specific terms entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim in which indemnification contractcould be sought by such Indemnified Party hereunder, without the consent of such Indemnified Party, which consent shall not be unreasonably withheld, conditioned or 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. (ib) after Prior to the Effective Time, ADC shall purchase a directors’ and officers’ and fiduciary liability insurance policy providing coverage for a period of at least six years following the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if Effective Time (i) for persons who were officers and/or directors of Xxxxxx xxxxx to the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, Effective Time and (ii) for persons who were officers and/or directors of ADC prior to the defendants inEffective Time and who are not officers or directors of ADC immediately following the Effective Time, in each case for claims arising after the Effective Time from facts or events which occurred at or prior to the Effective Time, and in each case, which policy shall provide for at least the same coverage and amounts containing terms and conditions that are not less advantageous than the respective policies of 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 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 targets ofcan only be obtained at an annual premium in excess of the Maximum Premium, any such litigation, claim or proceeding shall have been advised by counsel that there may ADC will cause to be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available maintained the most advantageous policies of directors’ and officers’ insurance obtainable for an annual premium equal to the Surviving Corporation, Maximum Premium. (c) In the event that ADC or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise any 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 its successors or proceeding. The Surviving Corporation shall not settle any such matter unless assigns (i) consolidates with or merges into any other Person and is not the Indemnified Party gives prior written consent, which shall not be unreasonably withheld continuing or delayed, surviving corporation or entity of such consolidation or merger or (ii) the terms transfers or conveys all or substantially all of the settlement provide its properties and assets to any Person, then, and in each such case, proper provision will be made so that the Indemnified Party shall have no responsibility successors and assigns of ADC assume the obligations set forth in this Section 6.4. (d) The provisions of this Section 6.4 are intended for the discharge of any settlement amount benefit of, and impose no other obligations or duties on the will be enforceable by, each Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to such matter. In no event shall the Surviving Corporation be liable for his or her heirs and representatives, and are in addition to, and not in substitution 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all other rights to indemnification in respect of or contribution that any such claim Indemnified Party may have had by contract or claims shall continue until the disposition of any and all such claims andotherwise.

Appears in 1 contract

Samples: Merger Agreement (Adc Telecommunications Inc)

Indemnification and Insurance. (a) The articles of incorporation WMATA shall indemnify, defend, and by-laws of hold harmless the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation District, 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 its directors, officers, employees agents, and employees, from and against all claims, suits, judgments, actions, losses, damages, liabilities, costs and expenses of every name and description, including but not limited to reasonable attorney 's fees and costs, brought by any third party arising out of, resulting from, or agents of the Companyin connection with any negligent act or omission by WMATA, unless such modification is required after the Effective Time its contractors, subcontractors, agents, or employees, or anyone directly or indirectly employed by lawthem, or anyone for whose acts they may be liable, relating to any CIP work covered by this Agreement. (b) Parent WMATA shall cause either be sufficiently self-insured or carry insurance to cover the Surviving Corporationrisks 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 fullest extent permitted under applicable law or under the Surviving Corporation's articles of incorporation or by-laws or any indemnification agreement in effect District, and its respective officers, agents, and employees as Additional Insureds. WMATA certifies that as of the date hereofEffective Date of this Agreement, to indemnify all commercial insurance and hold harmlessself-insurance lists the District and its respective officers, each present agents and former directoremployees as Additional Insureds. WMATA shall not remove the District, officer or employee its respective officers, agents, and employees as Additional Insureds for any self-insurance without the written consent of the Company or any of its Subsidiaries District. (collectively, the "INDEMNIFIED PARTIES"c) against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event WMATA receives notice from an insurer that any insurance policy is going to be, or 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 such claimcancellation or material adverse change to any self-insurance. (d) For commercial insurance, actionWMATA shall provide Certificates of Insurance listing the District, suitand its respective officers, proceeding 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 investigation (whether arising before subcontractors, WMATA may require all its agents, contractors or after the Effective Time) and subject to the specific terms subcontractors who perform any CIP work or activity of any indemnification contracttype to carry insurance sufficient to cover the risks for all damage to persons and property due to CIP work under this Agreement. However, (i) after such insurance does not relieve WMATA of the Effective Timeburden of being self-insured and/or carrying insurance to cover the actions of its employees. WMATA shall require of its agents, the Surviving Corporation shall assume and direct all the defense thereof, including settlementcontractors, and subcontractors that the Indemnified Parties 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 cooperate in require that its agents, contractors, and subcontractors provide Certificates of Insurance listing the defense District and its respective officers, agents, and employees as Additional Insureds for any such insurance policies. (f) Payment of any such matter. An Indemnified Party funds by or through the District shall have a right to participate in (but not control) the defense of waive 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise rights of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice District contained in this section nor release WMATA from any responsibilities or duties contained in this Agreement. (g) The obligations of this section shall survive the termination of this Agreement for the life of the institution of such litigationassets purchased with the funding provided or for 20 years after termination, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andwhichever is longer.

Appears in 1 contract

Samples: Dedicated Funding Grant Agreement

Indemnification and Insurance. (a) The articles Parent and Merger Sub agree that all rights to advancement of incorporation expenses, indemnification and by-laws 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 or any officer, director, manager, partner, governor or similar of any of the Company’s Subsidiaries (each an “Indemnified Party”) as provided in the Company Charter Documents or the corresponding documents of any Company Subsidiary as in effect on the date of this Agreement, or pursuant to any other indemnification agreements in effect on the date of this Agreement and set forth on Section 5.13 of the Company Disclosure Letter (collectively, the “Existing Indemnification Rights”) shall survive the Merger from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs. From and after the Effective Time, 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 CorporationCorporation to) indemnify, 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 defend and hold harmless, each present and former directoradvance expenses to, officer an Indemnified Party with respect to (x) all acts or employee of omissions by them in their capacities as such at any time at or prior to the Company Effective Time or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES"y) against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities liabilities, and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising to the extent such claim, action, suit, proceeding or investigation arises out of or pertaining pertains to the transactions contemplated Merger, this Agreement, and any Transactions, in their capacities as such, in either case, to the fullest extent permitted by this Agreement or (y) otherwise the Existing Indemnification Rights. The articles of incorporation and bylaws of the Surviving Corporation and of its Subsidiaries shall contain, and 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 any 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 in effect at the date of this Agreement and has been provided to Parent prior to the date hereof (the “D&O Insurance”) covering acts or omissions at or prior to the Effective Time with respect to those Persons who are covered by the D&O Insurance as of the 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 ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In Effective Time, with respect to those Persons who are covered by the event D&O Insurance as of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective TimeTime 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 subject 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 specific terms Persons currently covered by the D&O Insurance; (B) Parent shall not be required to pay any annual 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 indemnification contractsubstitutes therefor exceeds such amount, 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 the Surviving Corporation or any of their respective successors or assigns (i) after consolidates with or merges into any other Person and shall not be the Effective Time, the continuing or Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 or entity of such litigation, claim consolidation or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim merger; or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) 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 defendants in, successors and assigns of Parent 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) as the Surviving Corporation case may be, shall not have employed counsel satisfactory to such Indemnified Party, assume the obligations set forth in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 5.13. (d) The obligations of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b5.13 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 5.13 applies without the 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 beneficiaries of this Section 5.13, each of whom may enforce the provisions of this Section 5.13). (e) except The provisions of this Section 5.13 are intended to be in addition to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented rights otherwise available to the current and former officers and directors of the Company by a single law firm Law, charter, statute, bylaw or agreement (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there ischarter, under applicable standards of professional conductstatute, a conflict on any significant issue between the positions of any two bylaw or more Indemnified Parties. Notwithstanding anything agreement having been provided to Parent prior to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims anddate hereof).

Appears in 1 contract

Samples: Merger Agreement (Surmodics Inc)

Indemnification and Insurance. (a) The articles of incorporation From and by-laws of after the Effective Time, 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 CorporationCorporation to) indemnify, 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 defend and hold harmless, each present and former directoradvance expenses to, officer the individuals who at or employee prior to the Effective Time were directors or officers of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES"“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 harmless each Indemnitee against and from any costs or expenses (including reasonable attorneys' feesfees of counsel of nationally recognized reputation), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising to the extent such claim, action, suit, proceeding or investigation arises out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect pertains to any acts action or omissions occurring at 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 Time, including in connection with the Transactions; and ("Indemnification Liabilities"), to ii) pay in advance of the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event final disposition of any such claim, action, suit, proceeding or investigation the reasonable expenses (whether arising before or after the Effective Timeincluding reasonable fees of counsel of nationally recognized reputation) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate in the defense Indemnitee upon receipt 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 an undertaking by or on behalf of such litigation, claim or proceeding, Indemnitee to repay such Indemnified Party amount if it shall have the right ultimately be determined that such Indemnitee is not entitled to employ separate counsel and to participate in the defense be indemnified (if receipt of such litigation, claim or proceeding, an undertaking is required under applicable Law). Parent and the Surviving Corporation shall bear be entitled, but not obligated to, participate in the reasonable fees, costs defense and expenses settlement 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 litigationmatter; provided, claim or proceeding shall have been advised by counsel however, 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) Parent and the Surviving Corporation shall not have employed counsel satisfactory be liable for any settlement agreed to such Indemnified Party, in or effected without Parent’s and 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 Corporation’s written consent (i) the Indemnified Party gives prior 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, or 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 (ii) the terms selected by a plurality of the settlement provide that the Indemnified Party shall have no responsibility applicable Indemnitees) for the discharge of all Indemnitees in any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party jurisdiction with respect to any single action except to the extent that two or more of such matterIndemnitees shall have an actual conflict of interest in such action. In no event Notwithstanding anything to the contrary contained in this Section 5.8(b) or elsewhere in this Agreement, Parent shall not settle or compromise or consent to the Surviving Corporation entry of any judgment or otherwise seek termination with respect to any claim, action, suit, proceeding or investigation for which indemnification may be liable for any settlement effected without its prior written consent. Any Indemnified Party wishing to claim indemnification sought under this Section 6.06(b)5.8(b) unless such settlement, upon learning compromise, consent or termination includes an unconditional release of any all Indemnitees from all liability arising out of such claim, action, suit, proceeding or investigation. (c) Parent will provide, shall promptly notify Parent and or cause the 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 Company Schedule (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b“Existing D&O Policy”) except with an insurance and indemnification policy that provides coverage for events occurring at or prior to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm Effective Time (plus the “D&O Insurance”) that is no more less favorable than one local counsel in any jurisdiction) with respect to each such matter unless there isthe Existing D&O Policy or, under applicable standards of professional conductif substantially equivalent insurance coverage is unavailable, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrarybest available coverage; provided, in the event however, that (i) that any claim or claims for indemnification are asserted or made within Parent’s obligation to maintain the D&O Insurance will be deemed fully satisfied if the Existing D&O Policy remains in full force and effect throughout such six-year period, all rights (ii) in the event 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 indemnification pay an aggregate amount of premiums for replacement D&O Insurance for such six-year period in respect excess of any 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 claim replacement D&O Insurance for such six-year period exceed the Cap Amount, Parent or claims the Surviving Corporation shall continue until be obligated to obtain a policy with the disposition 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 any this Section 5.8. The provisions of this Section 5.8 are intended to be for the benefit of each Indemnitee, his heirs and all such claims andhis representatives.

Appears in 1 contract

Samples: Merger Agreement (Bravo Holdco)

Indemnification and Insurance. (a) The articles Parent and Merger Sub agree that all rights to exculpation, indemnification (including rights accruing under self-insurance arrangements in respect of incorporation deductibles, coverage limits or forgone third-party insurance) and by-laws 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 Surviving Corporation shall contain provisions with respect 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 other partnership, joint venture, trust, employee benefit plan or other entity or enterprise), as the case may be, of the Company or its Subsidiaries as provided in any agreement (copies of which have been provided to indemnification substantially to Parent and are listed in Section 5.9 of the same effect as those set forth Company Disclosure Schedule) or in the articles of incorporation and the by-laws or bylaws or other organization documents of the Company on or its Subsidiaries shall survive the date hereof, which provisions Merger and shall not be amended, modified or otherwise repealed for continue in full force and effect. For a period of six (6) years after 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 Indemnified Party; provided, however, that all rights to indemnification in respect of any Action (as hereinafter defined) pending or asserted or any claim made within such period shall continue until the disposition of the Effective Time such Action or resolution 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 lawclaim. (b) From and after the Effective Time, Parent shall cause and the Surviving CorporationCorporation shall, 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 hereofLaw, to jointly and severally indemnify and hold harmless, harmless (and advance funds in respect of each present of the foregoing) each current and former director, director and officer or employee of the Company or any of its Subsidiaries (collectivelyeach, the "INDEMNIFIED PARTIES"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 investigativeinvestigative (an “Action”), (x) arising out of, relating to or in connection with any action or omission of the Indemnified Party occurring or pertaining alleged to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring have occurred at or prior to the Effective Time ("Indemnification Liabilities")and with respect to current and former directors occurring or alleged to have occurred whether before or after the Effective Time, in connection with such Persons serving as an officer, director or other fiduciary of the Company or any other entity if such service was at the request or for the benefit of the Company or any of its Subsidiaries to the same extent as provided in the Company's ’s and any of its Subsidiaries’ articles of incorporation and bylaws or by-laws or any applicable contract or agreement as similar organizational documents in effect on immediately prior to the Effective Time or in any indemnification agreements of the Company or its Subsidiaries in effect as of the date hereof; provided, in each case for a period of six years after the date hereof. In the event of any such claimhowever, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, that neither Parent nor the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to such matter. In no event shall the Surviving Corporation be liable for any settlement effected without its either Parent’s or the Surviving Corporation’s prior written consent. Any , and the Surviving Corporation shall not be obligated to pay the fees and expenses of more than one counsel (selected by a plurality of the applicable Indemnified Party wishing Parties) for all Indemnified Parties in any jurisdiction with respect to claim indemnification under this Section 6.06(b), upon learning of any single such claim, action, suit, proceeding or 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 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 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 would adversely affect the rights of individuals who, at or prior to the Effective Time, were entitled to advances, indemnification, contribution or exculpation thereunder for actions or omissions by such individuals in their capacity as directors or officers of the Company or any of its Subsidiaries at any time prior to the Effective Time. (c) 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 before the Effective Time; provided, however, that if such “tail policy” costs more than 300% of such last annual premium, the Surviving Corporation shall purchase the maximum amount of coverage that can be obtained for 300% of such last annual premium. Prior to the Effective Time, with the written consent of Parent, the Company may procure such “tail policy” and prepay the premiums associated therewith for the entire six-year period, with such coverage to be effective commencing as of the Effective Time. (d) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of or exclusive of, any other rights such Indemnified Party may have under the articles of incorporation or bylaws or other organizational documents of the Company or any of its Subsidiaries or the Surviving Corporation, any other indemnification arrangement, self-insurance arrangement, the TBOC or otherwise. 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 promptly notify 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 or 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 not prior to or in substitution for any such claims under any such 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 (but and their respective successors and assigns. In the failure so to notify shall not relieve event Parent, the Surviving Corporation from or 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 their respective successors or more Indemnified Parties. Notwithstanding anything to the contrary, in the event 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 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 their heirs and personal representatives) or terminated without the consent of such Indemnified Party (including their heirs and representatives). (f) Parent and the Surviving 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 claim or claims for indemnification are asserted or made within Indemnified Party shall first be obligated to provide ten (10) days’ advance written notice to Parent before bringing any such six-year period, all rights claim. Except if failure to indemnification so provide such notice would result in respect the expiration of any statute of limitations regarding such claim or claims claim, no notice shall continue until the disposition of any and all such claims andbe required.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Silverleaf Resorts Inc)

Indemnification and Insurance. (a) The articles of incorporation PharmAthene and by-laws of the Surviving Corporation Subsidiary shall contain provisions with respect to indemnification substantially to indemnify the same effect as those set forth in the articles of incorporation current 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 former directors, officers, employees or and agents of the Company, unless such modification is required after the Effective Time by law. (bTheraclone and any other employees who have executed individual indemnity agreements as set forth on Section 6.9(a) 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 hereofTheraclone Disclosure Schedule (an “Indemnified Party”) for all claims, to indemnify and hold harmlesslosses, each present and former directorliabilities, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") against any costs or expenses (including reasonable attorneys' fees)damages, judgments, finesfines and reasonable fees, lossescosts and expenses, claimsincluding attorneys’ fees and disbursements, damages, liabilities and amounts paid in settlement incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated 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 this Agreement or (y) otherwise 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 occurring at or prior omissions. Each Indemnified Party will be entitled to the Effective Time advancement of expenses ("Indemnification Liabilities"), to the same extent as provided including attorneys’ fees) incurred in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event defense of any such claim, action, suit, proceeding or 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 DGCL, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (whether arising before or after the Effective Time) and 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 specific terms Surviving Subsidiary shall contain provisions no less favorable with respect to indemnification, advancement of any indemnification contractexpenses and exculpation of former and present officers, (i) after directors, employees and agents than are set forth in 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 Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate in the defense rights thereunder of any such matter. An 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 shall have a right to participate Party; provided, however, that, without the prior written consent of PharmAthene, Theraclone may not expend for any twelve (12) month period therefor in (but not control) the defense excess of any such matter with its own counsel and at its own expense. Notwithstanding the right 300% of the 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 immediately preceding sentence, then, for a period of six (6) years from the Effective Time PharmAthene shall cause the Surviving Corporation Subsidiary to assume maintain in effect the current policies of directors’ and control officers’ liability insurance and fiduciary liability insurance maintained by Theraclone with respect to matters arising on or before the defense Effective Time; provided, however, that after the Effective Time the Surviving Subsidiary shall not be required to pay annual premiums in excess of 300% of the last annual premium paid by Theraclone prior to the date of this Agreement in respect of the coverages required to be obtained pursuant hereto, but in such litigation, claim or proceeding, case shall purchase as much coverage as is reasonably available for such Indemnified Party amount. (c) The provisions of this Section 6.9 shall have survive the right consummation of the Merger and expressly are intended to employ separate counsel and to participate in the defense of such litigation, claim or proceedingbenefit, and are enforceable by, each of the Indemnified Parties. (d) If PharmAthene, the Surviving Corporation shall bear the reasonable fees, costs and expenses Subsidiary or any of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if their respective successors or assigns (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel consolidates with a conflict of interest, (ii) the defendants in, or targets of, merges into 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 person and shall not be unreasonably withheld the continuing or delayed, 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 terms successors and assigns of PharmAthene or the settlement provide 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 advancement of expenses under this Section 6.9 that is denied by PharmAthene or the Surviving Subsidiary, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then PharmAthene or the Surviving Subsidiary shall have no responsibility for pay the discharge of any settlement amount Indemnified Party’s costs and impose no other obligations or duties on expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party and in connection with pursuing his or her claims to the 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 fullest extent permitted by Law. (f) The provisions of this Section 6.06(b), upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so 6.9 are intended to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except be in addition 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 rights otherwise available to the contrarycurrent officers, in the event (i) that any claim directors, employees and agents of Theraclone by Law, charter, statute, by-law 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 andagreement.

Appears in 1 contract

Samples: Merger Agreement (Pharmathene, Inc)

Indemnification and Insurance. (a) The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation and the by-laws of the Company on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Effective 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 and the Surviving Corporation's articles of incorporation or by-laws or any indemnification agreement in effect as of the date hereofCorporation hereby agrees, to indemnify do the following: (a) All rights to indemnification and hold harmless, each 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 reasonable attorneys' fees), judgments, fines, losses, claims, damages, exculpation from liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any for acts or omissions occurring at or prior to the Effective Time Time, rights under employment agreements ("Indemnification Liabilities"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 same extent Effective Time becomes, or has been at any time prior to the date of this Agreement, a present or former director, officer, employee or agent (including as a fiduciary with respect to an employee benefit plan) of the Company, any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Person”) as provided in the Company's articles certificate of incorporation or by-laws of the Company, the bylaws of the Company, the organizational documents of any Subsidiary of the Company or any applicable contract 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 harmless all Indemnified Persons to the fullest extent permitted by the DGCL and any other Applicable Law in the event of any threatened or actual claim, suit, action, proceeding or investigation (a “Claim”), whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Person is or was a director (including in a capacity as a member of any board committee), officer, employee or agent of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactions, whether in effect any case asserted or arising before, on or after the date hereofEffective Time, against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorney’s fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Person to the fullest extent permitted by 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 Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification could be sought by an Indemnified Person hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Person from all liability arising out of such Claim or such Indemnified Person otherwise consents in writing to such settlement, compromise or consent. Parent and the Surviving Corporation shall cooperate with an Indemnified Person in the defense of any matter for which such Indemnified Person could seek indemnification hereunder. (c) Prior to the Effective Time, the Company shall, or if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain the premium for the non-cancellable extension of the directors’ and officers’ liability coverage of the 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 (6) years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or from and after the Effective Time) and subject Time with respect to any claim related to any period of time at or prior to the specific terms Effective Time (including claims with respect to the adoption of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, this Agreement and the Indemnified Parties shall cooperate 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 consummation of the Surviving Corporation to assume Transactions) with terms, conditions, retentions and control limits of liability that are no less favorable than the defense of such litigationcoverage provided under the Company’s existing policies; provided, claim or proceeding, such Indemnified Party that the Company shall have the right to employ separate counsel and give Parent a reasonable opportunity to participate in the defense selection of such litigation“tail” insurance policy and the Company shall give good faith consideration to any comments made by Parent with respect thereto; and provided, claim 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 proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel consolidates with a conflict of interest, (ii) the defendants in, or targets of, merges into 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 Person and shall not be unreasonably withheld the continuing or delayedsurviving corporation or entity of such consolidation or merger, or (ii) the terms transfers or conveys of the settlement provide its property and assets to any Person, then, and in each such case, proper provision shall be made so that the applicable successor, assign or transferee shall assume the obligations set forth in this Section 7.02 (including this Section 7.02(d)). (e) The rights of each Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 Person under this Section 6.06(b)7.02 shall be in addition to any rights such Person may have under the certificate of incorporation and bylaws of the Company or any of its Subsidiaries, upon learning under the DGCL or any other Applicable Law, under any agreement of any such claimIndemnified Person with the Company or any of its Subsidiaries or otherwise. These rights shall survive consummation of the Merger and are intended to benefit, actionand shall be enforceable by, suit, proceeding or investigation, shall promptly notify each Indemnified Person. The obligations of Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except 7.02 shall not be terminated or modified in such a manner as to adversely affect 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 rights of any two or more Indemnified Parties. Notwithstanding anything to Person without the contraryconsent of such Indemnified Person. (f) Parent shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification indemnity and other obligations provided in respect of any such claim or claims shall continue until the disposition of any and all such claims andthis Section 7.02.

Appears in 1 contract

Samples: Merger Agreement (Michaels Companies, Inc.)

Indemnification and Insurance. (a) The articles Certificate of incorporation Incorporation and by-laws Bylaws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification substantially to the same effect as those than are set forth in the articles Certificate of incorporation Incorporation and the by-laws Bylaws, respectively, of the Company on the date hereofCompany, which provisions shall not be amended, modified repealed or otherwise repealed modified for a period of six years after from the Effective Time in any manner that would affect adversely affect the rights thereunder as of individuals who, at or prior to the Effective Time of individuals who at the Effective Time Time, were directors, officers, employees or agents of the Companyemployees, 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 and hold harmless, each present and former director, officer or employee of the Company or any of its 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 and hold harmless each present and former director and officer of the Company and each of the Company Subsidiaries (collectively, the "INDEMNIFIED PARTIESIndemnified Parties") against any all costs or and expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject ), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission, in his or her capacity as an officer, director, or employee of the specific terms of any indemnification contractCompany, (i) after occurring on or before the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate in the defense of any such matter. An Indemnified Party shall have Time (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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to such matter"Covered Proceeding"). In no the 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, Parent or the Surviving Corporation shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Surviving Corporation, promptly notify after statements therefor are received (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); provided, however, that neither Parent nor the Surviving Corporation shall 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 (but the failure so to notify shall not relieve be required to agree to the entry of any judgment or settlement that provides for injunctive or other non-monetary relief affecting the Parent, the Surviving Corporation from or any liability which it may have under of their respective subsidiaries. Neither Parent nor the Surviving Corporation shall be obligated pursuant to this Section 6.06(b5.3(a) except to pay 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 fees and expenses of more than one local counsel in any jurisdiction(selected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties with respect to each such matter 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. Notwithstanding anything to , in which case Parent shall pay the contraryfees of such additional counsel required by such conflict; provided, that, in the event (i) that any claim or claims for indemnification are is asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims 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 Covered Proceeding shall promptly notify Parent and all such claims andthe Surviving Corporation.

Appears in 1 contract

Samples: Merger Agreement (Amcomp Inc /Fl)

Indemnification and Insurance. (a) The articles of incorporation and by-laws of the Surviving Corporation 10.1 Licensor 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 and hold harmlessLicensee, each present its Affiliates, and former directortheir respective employees, officer or employee of the Company or any of its Subsidiaries (collectivelydirectors and officers, the "INDEMNIFIED PARTIES") harmless from and against any liabilities or obligations, damages, losses, claims, encumbrances, costs or expenses (including reasonable attorneys' fees)) (any or 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 a Third Party based on or resulting from any misrepresentation or breach of any of the warranties, judgments, fines, losses, claims, damages, liabilities and amounts paid covenants or agreements made by Licensor in settlement in connection with this Agreement. Licensor’s obligations to indemnify Licensee hereunder shall not apply to the extent any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising such Loss arises out of or pertaining is based on any (a) inactions or actions of Licensee, a Sublicensee or its Affiliates for which Licensee is obligated to the transactions contemplated by indemnify Licensor under this Agreement or (yb) otherwise with 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 foregoing, harmless from and against any Loss insofar as such Loss or actions in respect to any acts or omissions occurring at or prior thereof occurs subsequent to the Effective Time Date and arises out of or is based upon a claim by a Third Party based on or resulting from ("Indemnification Liabilities")a) any misrepresentation or breach of any of the warranties, covenants or agreements made by 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 brought by any Third Party due to the same extent as provided use of any Licensed Product sold or distributed by or on behalf of Licensee, a Sublicensee, or any Affiliate thereof in the Company's articles Territory. Licensee’s obligations to indemnify Licensor hereunder shall not apply to the extent any such Loss arises out of incorporation or by-laws is based on any (a) inactions or any applicable contract actions of Licensor or agreement its Affiliates for which Licensor is obligated to indemnify Licensee under this Agreement or (b) negligence or intentional misconduct of Licensor or its Affiliates. 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 in effect on the date hereof, in each case for a period soon as reasonably practicable after such Indemnitee becomes aware of six years after the date hereof. In the event of any such claim, actionprovided that, suitnotwithstanding the foregoing, proceeding or investigation (whether arising before or after the Effective Time) and subject failure to notify the Indemnitor shall not relieve the Indemnitor from any liability except to the specific terms 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 any indemnification contract, Loss and relevant details thereof. The Indemnitor shall notify Indemnitee no later than ten (i10) after the Effective Time, the Surviving Corporation shall days from such notice of its intention to assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate in the defense of any such matterclaim. An Indemnified Party In the event the Indemnitor fails to give such notice within that time the Indemnitor shall no longer be entitled to assume such defense. 10.4 The Indemnitor shall at its expense, have the right, subject to the limitations of this Section 10.4, to settle and defend, through counsel reasonably satisfactory to the 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 its books and records and otherwise fully cooperate with the Indemnitor in connection with such action; provided that this Indemnitee shall have a the right fully to participate in (but not control) the such defense of any such matter with its own counsel and at its own expense. Notwithstanding 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 Surviving Corporation Indemnitor with respect to assume and control the defense 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 litigationconsent 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, claim or proceedingexcept 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 Indemnified Party action as provided herein, the Indemnitee involved shall have the right to employ separate counsel and to participate in assume the defense thereof with counsel of its choice, at the Indemnitor’s expense, and defend, settle or otherwise dispose of such litigationaction. With respect to any such action which the Indemnitor shall fail to promptly defend, claim or proceeding, the Indemnitor shall not thereafter question the liability of the Indemnitor hereunder to the Indemnitee for any Loss (including counsel fees and the Surviving Corporation shall bear the reasonable fees, costs and other expenses of such separate counsel defense). 10.5 Licensee shall, at its sole cost and shall pay such feesexpense obtain and keep in force comprehensive general liability insurance, costs including any applicable self-insurance coverage, with bodily injury, death and expenses promptly after receipt property damage including contractual liability and product liability coverage, of an invoice from such Indemnified Party if the types and in amounts which are (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, reasonable and customary in the exercise pharmaceutical industry for companies of comparable size and activities provided that, without limitation of the Indemnified Party's reasonable judgmentforegoing, to represent such Indemnified Party within a reasonable time after notice Licensee’s insurance coverage shall include comprehensive general product liability and general liability insurance each in amounts not less than $2 million per incident and $10 million annual aggregate and name Licensor as an additional insured. Licensee will provide written proof of the institution existence of such litigation, claim or proceedinginsurance to Licensor upon request. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which minimum amounts of insurance coverage required shall not be unreasonably withheld construed to create or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party limit Licensee’s liability 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andAgreement.

Appears in 1 contract

Samples: Development and Supply Agreement (Evofem Biosciences, Inc.)

Indemnification and Insurance. (a) The articles of incorporation From 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 CorporationTime, to the fullest extent permitted under applicable law or under Laws, the Surviving Corporation's articles of incorporation or by-laws or any indemnification agreement in effect as of Entity shall, and Parent shall cause the date hereofSurviving Entity to, to (i) indemnify and hold harmless, harmless each present and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") Indemnified Person against any reasonable costs or expenses (including reasonable attorneys' ’ fees and all other reasonable costs, expenses and obligations (including experts’ fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and binding costs, as well as telecommunications, postage and courier charges) paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to investigate, defend, be a witness in or participate in, any Proceeding 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 the transactions and actions contemplated hereby), including any such Proceeding relating to a claim for indemnification or advancement brought by an Indemnified Person), judgments, fines, losses, claims, damagesdamages or liabilities, liabilities penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) in connection with any claimsuch actual or threatened Proceeding, actionand, suitupon receipt by the 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, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out provide advancement of or pertaining to the transactions contemplated by this Agreement or (y) otherwise 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 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) The Surviving Entity, or Parent on behalf of the 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 omissions occurring at or prior to the Effective Time with respect to Indemnified Persons ("Indemnification Liabilities")provided, that the Surviving Entity, or Parent on behalf of the Surviving Entity, may substitute therefor policies with reputable carriers of at least the same coverage containing terms and conditions that are no less favorable to the same extent Indemnified Persons in any material respect); provided, however, that in no event shall the Surviving Entity or Parent, as provided in 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 Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on Partnership for such insurance (the date hereof, in each case for a period of six years after the date hereof“Maximum Amount”). In the event that, but for the proviso to the immediately preceding sentence, the Surviving Entity would be required to expend more than the Maximum Amount, the Surviving Entity, or Parent on behalf of the Surviving Entity, shall obtain the maximum amount of such insurance as is available for the Maximum Amount. If 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 the Indemnified Persons in any such claim, action, suit, proceeding material respect than the Partnership’s current directors’ and officers’ liability insurance policies covering acts or investigation (whether arising before omissions occurring at or after prior to the Effective Time) and subject or (ii) purchase (or cause to be purchased) a prepaid “tail policy” with respect to acts or omissions occurring or alleged to have occurred prior to the specific terms Effective Time that were committed or alleged to have been committed by such Indemnified Persons in their capacity as such. (c) The rights of any indemnification contractIndemnified Person under this Section 6.6 shall be in addition to any other rights such Indemnified Person may have under the Parent Organizational Documents, (i) after the Organizational Documents of the Partnership Parties as in effect immediately prior to the Effective Time, the Surviving Corporation Entity or any Subsidiary of Parent or the Partnership, any indemnification agreements, or the DLLCA or DRULPA. The provisions of this Section 6.6 shall assume survive the consummation of the transactions contemplated by this Agreement and direct all the defense thereof, including settlement, and are expressly intended to benefit each of the Indemnified Parties shall cooperate in the defense of any such matterPersons and their respective heirs and Representatives. 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 If Parent, the Surviving Corporation to assume and control the defense Entity, any Partnership Party or any of such litigation, claim their respective successors or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if assigns (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel consolidates with a conflict of interest, (ii) the defendants in, or targets of, merges into 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, Person or (ii) the terms transfers or conveys all or substantially all of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of their businesses or assets to any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to Person, then, in each 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)case, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent necessary, proper provision shall be made so that the successors and assigns of Parent, the Surviving Entity or such failure materially prejudices Partnership Party, as applicable, shall assume the obligations of Parent, the Surviving Entity or such Surviving Corporation). The Indemnified Parties Partnership Party, as a group will be represented by a single law firm (plus no more than one local counsel applicable, set forth in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andthis Section 6.6.

Appears in 1 contract

Samples: Merger Agreement (Phillips 66)

Indemnification and Insurance. (a) The articles Certificate of incorporation Incorporation and byBy-laws Laws of the Surviving Corporation Company shall contain the provisions with respect to indemnification substantially to the same effect as those set forth in the articles Certificate of incorporation Incorporation and the by-laws ByLaws of the Company on the date hereof, which provisions shall not be amended, modified repealed or otherwise repealed for a period of six years after the Effective Time modified in any manner that would adversely affect the rights to indemnification thereunder as of the Effective Time of individuals who at the Effective Time were any current or future 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 CorporationThe Company shall, to the fullest extent permitted under applicable law or under the Surviving CorporationCompany's articles Certificate of incorporation Incorporation or byBy-laws or any indemnification agreement Laws as in effect as on the Closing Date and regardless of whether the date hereofClosing occurs, to indemnify and hold harmless, harmless each present and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIESIndemnified Parties") against any out of pocket costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative incurred by such person by reason of the fact that such person is or was an Indemnified Party, (x) arising out of or pertaining to the transactions contemplated by this Agreement and the other Transaction Documents or (y) otherwise with respect to any acts or omissions occurring at on or prior to the Effective Time ("Indemnification Liabilities")Closing Date, to the same extent as provided in the Company's articles Certificate of incorporation Incorporation or byBy-laws Laws as in effect on the Closing Date or any applicable contract or agreement as in effect on the date hereof, hereof and identified in each case for a period Schedule 3.18 hereto as containing an agreement concerning indemnification of six years after the date hereofany Indemnified Parties. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contractClosing Date), (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and any counsel retained by the Indemnified Parties for any period after the Closing Date shall be reasonably satisfactory to the Company, (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 such matter. An Indemnified Party shall have a right to participate in (but not control) ; provided, however, that 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation Company shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 consent (but the failure so to notify which consent 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 Corporationbe unreasonably withheld). The Indemnified Parties as a group will be represented by a single law firm may retain (plus no more than one local counsel in any jurisdiction) with respect addition to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andlocal

Appears in 1 contract

Samples: Stock Purchase and Sale Agreement (Transmedia Network Inc /De/)

Indemnification and Insurance. (a) The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation and the by-laws of the Company on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Effective Time in any manner Merger Agreement provides 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 for six and one-half years from and after 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 hereofEffective Time, to indemnify will indemnify, defend and hold harmless, each harmless the present and former director, officer or employee officers and directors of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIESCovered Parties") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, all losses, claims, damages, liabilities liabilities, costs and expenses, including attorneys' fees and expenses, judgments, fines, losses and amounts paid in settlement in connection with any claim, actual or threatened action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective TimeTime (each a "Claim") and subject to the specific terms extent that 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 contractagreements in effect on the date of the Merger Agreement. In addition, (i) the Surviving Corporation will, for six and one-half years from and after the Effective Time, the Surviving Corporation shall assume maintain in effect directors' and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility officers' liability insurance policies for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party Covered Parties with respect to such mattermatters occurring prior to the Effective Time that is at least equal to the Company's current directors' and officers' liability insurance policies. In no event shall STATE TAKEOVER LAWS Under the Surviving Corporation be liable for any settlement effected without its prior written consent. Any Indemnified Party wishing Merger Agreement, the Company will take all reasonably necessary steps to claim indemnification under this Section 6.06(b)exempt the transactions contemplated by the Merger Agreement, upon learning including the Merger, from the requirements of any applicable state takeover law and to assist Merger Sub in any challenge to the validity or applicability to such claimtransactions of any state takeover law. COOPERATION WITH FINANCING During the period prior to the Effective Time, actionthe 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, suitduring 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 the date of termination of the Merger Agreement, proceeding neither Saw Mill, Parent nor Merger Sub will, directly or investigationindirectly, shall promptly notify Parent acquire or propose to acquire ownership, beneficially or of record, of any equity securities of the Company or any of its subsidiaries, except pursuant to the Merger Agreement and, immediately prior to the completion of the Merger, pursuant to the limited partnership agreement of Saw Mill and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andContribution Agreement.

Appears in 1 contract

Samples: Proxy Statement (Jason Inc)

Indemnification and Insurance. (a) The articles From and after the Effective Time, each of incorporation Parent 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 indemnify 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 Corporationhold harmless, to the fullest extent permitted under applicable law Applicable Laws (and shall also pay or advance expenses as incurred, to the fullest extent permitted under the Surviving Corporation's articles of incorporation Applicable Laws, to), each Person who is now, or by-laws or has been at any indemnification agreement in effect as of time prior to the date hereofof this Agreement or who becomes prior to the Effective Time, to indemnify and hold harmless, each present and former director, a director or officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES"“Indemnified Parties”) against any costs or expenses (including reasonable attorneys' fees, expenses and disbursements), judgments, fines, losses, claims, damages, liabilities and 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, (x) arising out of or pertaining related to such Indemnified Party’s service as a director or officer of the transactions contemplated by this Agreement Company or (y) otherwise with respect to any acts or omissions occurring its Subsidiaries at or prior to the Effective Time ("Indemnification Liabilities")or services performed by such Indemnified Party, at the 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 same extent as provided Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including, but not limited to, in connection with (i) the Company's articles of incorporation or by-laws Transactions and (ii) actions to enforce this provision or any applicable contract other indemnification or agreement as advancement right of any Indemnified Party in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) investigation, Parent and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall reasonably cooperate in or use reasonable best efforts in the vigorous 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; provided, claim or proceedinghowever, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, that Parent and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to such matter. In no event shall the Surviving Corporation be liable for any settlement effected without its their respective prior written consentconsent (which consent shall not be unreasonably withheld, delayed or conditioned). Any The Surviving Corporation shall pay all reasonable expenses, including reasonable attorneys’ fees, expenses and disbursements, that may be incurred by any Indemnified Party wishing to claim indemnification under in enforcing the indemnity and other obligations provided in this Section 6.06(b6.10. (b) Without limiting the generality of Section 6.10(a), upon learning of if any such Indemnified Party becomes involved in any actual or threatened claim, action, suit, proceeding or investigationinvestigation covered by this Section 6.10 after the Effective Time, shall promptly notify Parent and the Surviving Corporation shall, to the fullest extent permitted by Applicable Laws, advance to such Indemnified Party his or her legal or other expenses (but including attorneys’ fees, expenses and disbursements and the failure so to notify shall not relieve 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 liability which it may have under this Section 6.06(brequirement for the posting of a bond or any other terms or conditions other than those expressly set forth herein. (c) except Prior to the extent such failure materially prejudices such Effective Time, the Company shall and, if the Company is unable to, Parent shall cause the Surviving Corporation). The , 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 a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) the Company’s existing policies with respect to any actual or 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 Effective Time (including in connection with this Agreement or the Transactions); provided, however, that in no event shall the Company or the Surviving Corporation expend for such policies pursuant to this sentence an annual premium amount in excess of 300% of the annual premiums currently paid by the Company for such insurance (the “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 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 Company’s existing policies as of the date hereof, or the Surviving Corporation shall, 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 liability that are at least as favorable to the Indemnified Parties as provided in the Company’s existing policies as of the date hereof; provided, 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 provided, further, that if the annual premiums of such insurance coverage exceed the Maximum Premium, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, 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 of their respective successors or assigns shall (i) 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 matter unless there iscase, under applicable standards proper provisions shall be made so that the successors and assigns of professional conductParent or the Surviving Corporation, a conflict 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 her heirs and his or her legal representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. The provisions of this Section 6.10 shall survive the consummation of the Merger. (f) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (including any matters arising in connection with the Transactions) now existing in favor of the current or former directors or officers of the Company or any of its Subsidiaries as provided in any agreement in effect on any significant issue the date hereof (and made available to Parent prior to the date hereof) between the positions Company or any of its Subsidiaries, on the one hand, and any two current or more Indemnified Partiesformer director or officer of the Company or any of its Subsidiaries, on the other hand, will be 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 their terms. The Charter and the 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. (g) Notwithstanding anything herein to the contrary, in the case of Sections 6.10(c) and 6.10(f) in the event (i) that any claim or claims for indemnification are is asserted or made within such six-year periodon or prior to the sixth anniversary of the Effective Time, all rights to indemnification in respect of any such claim or claims shall continue until the final disposition of any and all such claims andclaim.

Appears in 1 contract

Samples: Merger Agreement (Zoltek Companies Inc)

Indemnification and Insurance. (a) The articles Immediately after the Effective Time, the certificate of incorporation and by-laws of the Surviving Corporation shall will contain provisions with respect to exculpation and indemnification substantially that are at least as favorable to the same effect present and former officers and directors of Axxxxx and its Subsidiaries (each an “Indemnified Party”) as those set forth contained in the articles of incorporation Axxxxx Charter and the byAxxxxx By-laws of the Company as in effect on the date hereof, which provisions shall will not be amended, modified repealed or otherwise repealed modified for a period of six years after from the Effective Time in any manner that would adversely affect the rights thereunder as of individuals who, immediately prior to the Effective Time of individuals who at the Effective Time Time, were directors, officers, employees or agents of the CompanyAxxxxx, unless such modification is required after the Effective Time by law. (b) Parent . ADC 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, Corporation to indemnify and hold harmlessharmless each Indemnified Party against all claims, each present and former directorlosses, officer or employee of the Company or any of its Subsidiaries (collectivelyliabilities, the "INDEMNIFIED PARTIES") against any costs or expenses (including reasonable attorneys' fees)damages, judgments, finesinquiries, lossesfines and reasonable fees, claimscosts and expenses, damages, liabilities including attorneys’ fees and amounts paid in settlement disbursements incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of actions taken by them in their capacity as officers or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring directors at or prior to the Effective Time ("Indemnification Liabilities"including in connection with this Agreement and the transactions contemplated hereby), or 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 same fullest extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case permitted under Applicable Law for a period of six years after the date hereofEffective Time. In Each Indemnified Party shall be entitled to advancement of expenses incurred in the event defense of any such claim, action, suit, proceeding or investigation (whether arising before from the Surviving Corporation within ten Business Days of receipt of the Surviving Corporation from the 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 Surviving Corporation shall settle, compromise or after the Effective Time) and subject consent to the specific terms entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim in which indemnification contractcould be sought by such Indemnified Party hereunder, without the consent of such Indemnified Party, which consent shall not be unreasonably withheld, conditioned or 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. (ib) after Prior to the Effective Time, ADC shall purchase a directors’ and officers’ and fiduciary liability insurance policy providing coverage for a period of at least six years following the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if Effective Time (i) for persons who were officers and/or directors of Axxxxx xxxxx to the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, Effective Time and (ii) for persons who were officers and/or directors of ADC prior to the defendants inEffective Time and who are not officers or directors of ADC immediately following the Effective Time, in each case for claims arising after the Effective Time from facts or events which occurred at or prior to the Effective Time, and in each case, which policy shall provide for at least the same coverage and amounts containing terms and conditions that are not less advantageous than the respective policies of 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 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 targets ofcan only be obtained at an annual premium in excess of the Maximum Premium, any such litigation, claim or proceeding shall have been advised by counsel that there may ADC will cause to be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available maintained the most advantageous policies of directors’ and officers’ insurance obtainable for an annual premium equal to the Surviving Corporation, Maximum Premium. (c) In the event that ADC or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise any 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 its successors or proceeding. The Surviving Corporation shall not settle any such matter unless assigns (i) consolidates with or merges into any other Person and is not the Indemnified Party gives prior written consent, which shall not be unreasonably withheld continuing or delayed, surviving corporation or entity of such consolidation or merger or (ii) the terms transfers or conveys all or substantially all of the settlement provide its properties and assets to any Person, then, and in each such case, proper provision will be made so that the Indemnified Party shall have no responsibility successors and assigns of ADC assume the obligations set forth in this Section 6.4. (d) The provisions of this Section 6.4 are intended for the discharge of any settlement amount benefit of, and impose no other obligations or duties on the will be enforceable by, each Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to such matter. In no event shall the Surviving Corporation be liable for his or her heirs and representatives, and are in addition to, and not in substitution 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all other rights to indemnification in respect of or contribution that any such claim Indemnified Party may have had by contract or claims shall continue until the disposition of any and all such claims andotherwise.

Appears in 1 contract

Samples: Merger Agreement (Andrew Corp)

Indemnification and Insurance. (a) The articles Parent and Merger Sub agree that all rights to advancement of expenses, indemnification and exculpation by the 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 by-laws bylaws of the Surviving Corporation shall contain 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 substantially to the same effect as those indemnification, advancement of expenses and exculpation of each Indemnified Party than are set forth in the articles certificate of incorporation and the by-laws bylaws of the Company or any Company Subsidiary as in effect 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 lawthis Agreement. (b) Parent shall cause For six (6) years after the Surviving CorporationEffective Time, to the fullest full extent permitted under applicable law or under Law, Parent and the Surviving Corporation's articles of incorporation or by-laws or any indemnification agreement in effect as of Corporation (the date hereof“Indemnifying Parties”) shall, to indemnify jointly and severally, indemnify, defend and hold harmless, harmless each present and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") Indemnified Party against any costs or expenses (including reasonable attorneys' fees), judgments, fines, all losses, claims, damages, liabilities and amounts paid liabilities, fees, expenses, judgments or fines arising in settlement whole or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising part out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts actions or omissions in their capacity as such occurring at or prior to the Effective Time ("Indemnification Liabilities"including in respect of this Agreement and the Merger), to the same extent as provided in the Company's articles of incorporation whether asserted or by-laws or any applicable contract or agreement as in effect on the date hereofclaimed prior to, 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 at or after the Effective Time, and shall advance each Indemnified Party within twenty (20) and Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor for any 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 specific terms Indemnifying Parties’ receipt of an unsecured undertaking, to the extent required by the DGCL, 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 indemnification contractIndemnified 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 any Company Subsidiary prior to the Effective Time who are then covered by the directors’ and officers’ liability insurance policy currently maintained by the Company (ia 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 annual premiums necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, Parent and the Surviving Corporation shall assume procure and direct all maintain for such six-year (6) period as much coverage as is available for the defense thereof, including settlement, and the Indemnified Parties shall cooperate in the defense of any such matterMaximum Amount. 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 proceeding, such Indemnified Party Parent shall have the right to employ separate counsel 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 participate such former directors or officers than the D&O Insurance, and such “tail” policy shall satisfy the provisions of this Section 5.9(c). Notwithstanding anything to the contrary in this Agreement, the defense Company may, prior to the Effective Time, purchase such a “tail policy”, 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) 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 litigationconsolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, claim or proceedingthen, and in each such case, Parent and the Surviving Corporation shall bear cause the reasonable fees, costs successors and expenses assigns 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, Parent 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) as the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgmentcase may be, to represent such Indemnified Party within a reasonable time after notice of assume the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 set forth in this Section 6.06(b), upon learning 5.9. (e) The obligations of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b5.9 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 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. (f) except The provisions of this Section 5.9 are intended to be in addition 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 rights otherwise available to the contrarycurrent and former officers and directors of the Company by Law, in the event (i) that any claim charter, statute, bylaw 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 andagreement.

Appears in 1 contract

Samples: Merger Agreement (Ply Gem Holdings Inc)

Indemnification and Insurance. (a) The articles Parent and Merger Sub agree that all rights to advancement of incorporation expenses, indemnification and by-laws exculpation by the Company or any Company Subsidiary now existing in favor of the Surviving Corporation shall contain provisions with respect to indemnification substantially each person who is now, or has been at any time prior to the same effect as those set forth in date of this Agreement or who becomes prior to the articles of incorporation and the by-laws 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 hereofof this Agreement, which provisions or pursuant to any other agreements in effect on the date of this Agreement, shall not be amended, modified or otherwise repealed for a period of six years after survive the Merger from the Effective Time in any manner that would adversely affect through the rights thereunder as sixth (6th) anniversary of the date on which 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 lawoccurs. (b) Without limiting the foregoing, from and after the Acceptance Time, each of Parent shall cause and the Surviving CorporationCorporation shall, jointly and severally, to the fullest extent that the Surviving Corporation would be permitted to do so under applicable law or under the Surviving Corporation's articles Law, indemnify, defend and hold harmless (and advance funds in respect of incorporation or by-laws or any indemnification agreement in effect as each of the date hereofforegoing, subject to indemnify and hold harmless, each present and former director, officer the indemnifying or employee advancing party's receipt of an unsecured undertaking by or on behalf of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES"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' feesfees 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 administrative, investigative or investigativeotherwise (an "Action"), (x) 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 pertaining 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 transactions contemplated Effective Time who are then covered by this Agreement or the directors' and officers' liability insurance policy currently maintained by the Company (ythe "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) otherwise with respect years after the Effective Time, but only to any acts the extent related to actions or omissions occurring of such officers and directors at or prior to the Effective Time ("Indemnification Liabilities")including in respect of this Agreement and the Transactions) in their capacities as such, to the same extent as provided in the Company's articles of incorporation whether asserted or by-laws or any applicable contract or agreement as in effect on the date hereofclaimed prior to, 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 at or after the Effective Time) and subject to the specific terms of any indemnification contract; provided, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate that 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to such matter. In no event shall the Surviving Corporation be liable required to expend more than an amount per year equal to 250% of current annual premiums paid by the Company for any settlement effected without 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 such "tail" policy shall satisfy the provisions of this Section 6.9(b). 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 on 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 prior written consent. Any Indemnified Party wishing to claim indemnification full term, Parent shall be relieved from its other obligations under this Section 6.06(b6.9(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 or substantially all of its properties and assets to any Person, upon learning then, and in each such case, proper provision shall be made so that the successors and assigns of any such claimParent or the Surviving Corporation, action, suit, proceeding or investigationas the case may be, shall promptly notify assume the obligations set forth in this Section 6.9. (e) The obligations of Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except 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 extent written consent of such failure materially prejudices such Surviving Corporation). The affected Indemnified Party (it being expressly agreed that the Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andwhom this

Appears in 1 contract

Samples: Merger Agreement (Sepracor Inc /De/)

Indemnification and Insurance. From and after the Effective Time, (a) The articles of incorporation and by-laws of Parent shall cause the Surviving Corporation shall contain to, and the Surviving Corporation shall, include as part of its Certificate of Incorporation and Bylaws provisions with respect to indemnification substantially relating to the same effect as those set forth in the articles indemnification of incorporation all current and the by-laws former directors, officers, employees and agents of the Company on which are no less favorable than the date hereof, which provisions contained in the Company's Certificate of Incorporation and Bylaws. Such provisions shall not be amended, modified repealed or otherwise repealed for a period of six years modified after the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who at any time prior to the Effective Time were directors, officers, employees or agents of the CompanyCompany 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 after the Effective Time 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 harmless and after the Effective Time, Parent shall cause and the Surviving CorporationCorporation shall, to the fullest extent permitted under applicable law or under the Surviving Corporation's articles Certificate of incorporation Incorporation or by-laws or any indemnification agreement in effect as of the date hereofBylaws, to indemnify and hold harmless, each present and former director, officer or employee of the Company or any of its Subsidiaries subsidiaries (collectively, the "INDEMNIFIED PARTIESIndemnified Parties") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts act or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereofTime, 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) and subject to the specific terms of any indemnification contract), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation shall assume pay the reasonable fees and direct all the defense thereofexpenses of such counsel, including settlementpromptly after statements therefor are received, and (iii) the Indemnified Parties shall Surviving Corporation will cooperate 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; provided, claim or proceedinghowever, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 consent (but the failure so to notify which consent 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 Corporationbe unreasonably withheld). 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; and provided, under applicable standards of professional conductfurther, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrarythat, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andclaims. 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 positions of any two or more Indemnified Parties in which case this limitation shall not apply. (c) 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 the Company's directors' and officers' insurance policy on terms no less favorable than those now applicable to directors and officers of the Company; provided, however, that Parent and the 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 be required to maintain such policies to the extent the premium therefore exceeds 200% of the annual premiums currently paid by the Company in respect of the current policy or policies (the "Maximum Amount") but in such case shall purchase as much comparable coverage as available for the Maximum Amount.

Appears in 1 contract

Samples: Merger Agreement (Showscan Entertainment Inc)

Indemnification and Insurance. (a) The articles of incorporation From 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 Time, the rights thereunder as of the Effective Time of individuals who at the Effective Time were directorsSurviving Company shall, officers, employees or agents of the Company, unless such modification is required after the Effective Time by law. (b) and Parent shall cause the Surviving CorporationCompany to, to the fullest extent permitted by applicable Law, honor and fulfill in all respects the obligations of the Company and its Subsidiaries under applicable law or under (i) the Surviving Corporation's memorandum and articles of incorporation association (or by-laws or any indemnification agreement similar organizational documents) of the Company and its Subsidiaries in effect as of the date hereofof this Agreement with respect to exculpation from liability, indemnification and advancement and reimbursement of expenses and (ii) any and all indemnification agreements identified on Section 5.06 of the Company Disclosure Letter between the Company or any of its Subsidiaries and any 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 harmless, harmless each present 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 "INDEMNIFIED PARTIES"“Indemnitees”) against any costs or expenses (including reasonable attorneys' fees)with respect to all claims, liabilities, losses, damages, judgments, fines, lossespenalties, claims, damages, liabilities and costs (including amounts paid incurred by such Indemnitee in settlement or compromise) and expenses (including reasonable fees and expenses of legal counsel) in connection with any claim, action, suit, proceeding or investigation, Action (whether civil, criminal, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (x1) arising out the fact that an Indemnitee is or was a director, officer or employee of the Company or pertaining 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 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 (including 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 time prior to, the Effective Time (including any Action relating in whole or in part to the transactions contemplated by Transactions or relating to the enforcement of this Agreement provision or any other indemnification, advancement or reimbursement right of any Indemnitee)and (yB) otherwise with 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 to any of indemnification, advancement and reimbursement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles Company Charter and the organizational documents of incorporation or by-laws or any applicable contract or agreement such Subsidiaries as in effect on the date hereofof this Agreement. Without limiting the foregoing, in each case for a period of six years after the date hereof. In the event of any such claimParent, action, suit, proceeding or investigation (whether arising before or from and after the Effective Time, shall cause, unless otherwise required by Law, memorandum and articles of association (or similar organizational documents) of the 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 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) None of Parent or the specific terms Surviving Company shall settle, compromise or consent to the entry of any judgment in any threatened or actual litigation, claim or proceeding relating to any acts or omissions covered under this Section 5.06 (each, a “Claim”) for which indemnification contractcould be sought by an Indemnitee hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnitee from all liability arising out of such Claim or such Indemnitee otherwise consents in writing to such settlement, compromise or consent. Each of Parent, the Surviving Company and the Indemnitees shall cooperate in the defense of any Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. (ic) For the six-year period commencing immediately after the Effective Time, the Surviving Corporation Company shall assume (and direct all Parent shall cause the defense thereofSurviving Company to) maintain in effect the Company’s current directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to those individuals who are currently (and any additional individuals who prior to the Effective Time become) covered by the Company’s directors’ and officers’ liability insurance policies on terms and scope with respect to such coverage, and in amount, no less favorable 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 settlementa “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 the Indemnified Parties shall cooperate conditions providing at least substantially equivalent benefits in the defense aggregate as the current policies of any such matterdirectors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, covering without limitation the Transactions. An Indemnified Party shall have a right The Surviving Company will not be obligated to participate (i) pay annual premiums for the “tail” policy in (but not control) the defense excess of any such matter with its own counsel and at its own expense. Notwithstanding the right 300% of the Surviving Corporation to assume and control amount paid by the defense 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 litigationinsurance coverage for the six-year period exceed the Maximum Premium or the aggregate cost for such “tail” policy exceeds the Maximum Premium, claim 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 proceedingan aggregate cost for such “tail” policy not exceeding the Maximum Premium. If such prepaid “tail” policy has been obtained by the Company, such Indemnified Party it shall have the right be deemed to employ separate counsel and satisfy all obligations to participate in the defense of such litigation, claim or proceeding, obtain insurance pursuant to this Section 5.06(c) and the Surviving Corporation Company shall bear the reasonable feescause such policy to be maintained in full force and effect, costs for its full term, and expenses to honor all of such separate counsel and shall pay such fees, costs and expenses promptly after receipt its obligations thereunder. (d) The provisions of an invoice from such Indemnified Party if this Section 5.06 are (i) intended to be for the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interestbenefit of, and shall be enforceable by, each Indemnitee, his or her heirs and his or her Representatives and (ii) the defendants inin addition to, or targets ofand not in substitution for, any other rights to indemnification, reimbursement or contribution that any such litigationindividual may have under the Company Charter, claim by contract or proceeding 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 been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or consented in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory writing to such Indemnified Party, in termination or modification (it being expressly agreed that the exercise Indemnitees to whom this Section 5.06 applies shall be third party beneficiaries of this Section 5.06). (e) In 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 event that (i) Parent, the Indemnified Party gives prior written consent, which shall Surviving Company or any of their respective successors or assigns (A) consolidates with or merges into any other Person and is not be unreasonably withheld the continuing or delayedsurviving 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 terms 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 settlement provide 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 the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations is or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party 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 matter. In no event shall claims under such policies. (g) Parent’s and the Surviving Corporation be liable for any settlement effected without its prior written consent. Any Indemnified Party wishing to claim indemnification Company’s obligations under this Section 6.06(b)5.06 shall continue in full force and effect for a period of six years from the Effective Time; provided, upon learning 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 any such claimthe Effective Time, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under provisions of this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims 5.06 shall continue in effect until the disposition full and final resolution of any and all such claims andClaim.

Appears in 1 contract

Samples: Merger Agreement (Propertyguru Group LTD)

Indemnification and Insurance. (a) The articles of incorporation 9.1 LICENSEE agrees to hold harmless 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 hereofindemnify BOARD, which provisions shall not be amendedSYSTEM, 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 directorsUTMDACC, their Regents, officers, employees employees, students and agents from and against any claims, demands, or agents 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 Companyrights granted hereunder by LICENSEE, unless such modification is required after the Effective Time by lawits officers, its AFFILIATES or their officers, employees, agents or representatives. (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 and hold harmless, each 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 reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to such matter. 9.2 In no event shall the Surviving Corporation BOARD, SYSTEM or UTMDACC be liable for any settlement effected indirect, special, consequential or punitive damages (including, without limitation, damages for loss of profits or expected savings or other economic losses, or for injury to persons or property) arising out of, or in connection with, this AGREEMENT or its prior written consentsubject 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 for the purpose of obtaining regulatory approvals) by LICENSEE, an AFFILIATE, or by a 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. Any Indemnified Party wishing Such commercial general liability insurance shall provide: (i) product liability coverage; (ii) broad [*] Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to claim the omitted portions. form contractual liability coverage for LICENSEE’s indemnification under this Section 6.06(b), upon learning AGREEMENT; and (iii) coverage for litigation costs. The minimum amounts of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify insurance coverage required herein shall not relieve the Surviving Corporation from any be construed to create a limit of LICENSEE’S 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 its indemnification under this AGREEMENT. 9.4 LICENSEE shall provide UTMDACC with written evidence of such matter unless there isinsurance within thirty (30) calendar days of its procurement. Additionally, under applicable standards LICENSEE shall provide UTMDACC with written notice of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything at least fifteen (15) calendar days prior to the contrarycancellation, non-renewal or material change in such insurance. 9.5 LICENSEE shall maintain such commercial general liability insurance beyond the event (i) that any claim expiration or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect termination of any such claim or claims shall continue until the disposition of any and all such claims andthis AGREEMENT during: [*].

Appears in 1 contract

Samples: Patent and Technology License Agreement (Introgen Therapeutics Inc)

Indemnification and Insurance. A. Landlord, its agents, servants, employees, invitees, or contractors (aeach an “Indemnified Party”) The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation and the by-laws of the Company on the date hereof, which provisions shall not be amendedliable to Tenant and Tenant hereby waives all 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, modified including without limitation, gas, fire, oil, electricity, or otherwise repealed for a period leakage of six years after any character from the Effective Time in any manner that would adversely affect the rights thereunder as roof, walls, basement, or other portion of the Effective Time Leased Premises or the Building, but excluding, however, the gross negligence or willful misconduct of individuals who at the Effective Time were directorsany Indemnified Party of which gross negligence or willful misconduct Landlord has knowledge and reasonable time to correct. Landlord shall indemnify, officersdefend, 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 and hold harmlessharmless Tenant, each present its agents, servants, employees, invitees, or contractors (“Tenant Indemnified Parties”), from and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") against any costs or expenses (and all expenses, including reasonable attorneys' fees), judgmentsimposed on Tenant Indemnified Parties, finesarising 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, lossesTenant shall indemnify, claimsdefend, damagesand hold each Indemnified Party harmless from and against any and all expenses, liabilities and amounts paid in settlement including reasonable attorneys’ fees, in connection with therewith, arising out of any injury to or death of any person or damage to or destruction of property occurring in, on, or about the Leased Premises, or any part thereof, from any cause whatsoever. Landlord agrees to indemnify, defend, and hold each Tenant Indemnified Party harmless from and against any claim, actionloss, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) expense arising out of injury, death or pertaining to the transactions contemplated by this Agreement property loss or (y) otherwise with respect to any acts or omissions damage occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles common areas of incorporation the Building, except where the principal cause of such injury, death, or by-laws 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 applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereofexpenses, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable 8 - PLAZA TOWER ONE LEASE attorneys’ 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, imposed on 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, arising out of any injury or death of any person or damage or destruction of property occurring in or on the exercise common areas of the Indemnified Party's reasonable judgmentBuilding caused by Tenant’s gross negligence or willful misconduct. B. Tenant, at Tenant’s expense, agrees to represent such Indemnified Party within a reasonable time after notice keep in force during the Term of this Lease and any extensions thereof the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andfollowing insurance policies:

Appears in 1 contract

Samples: Lease (Lifeline Therapeutics, Inc.)

Indemnification and Insurance. 9.1 LICENSEE agrees to hold harmless and indemnify BOARD, SYSTEM, UTMDACC, A&M, their Regents, officers, employees, students and agents from and against any third-party claims, demands, 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 (a“CLAIMS”) The articles of incorporation and caused by-laws , or arising out of, or resulting from, the exercise or practice of the Surviving Corporation shall contain provisions rights granted hereunder by LICENSEE, its officers, its AFFILIATES or their officers, employees, agents or representatives, other than 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 and hold harmless, each 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 reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) CLAIMS arising out of or pertaining resulting from the willful misconduct or gross negligence of a LICENSOR. 9.2 In no event shall BOARD, SYSTEM, UTMDACC or A&M 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, or for injury to persons or property) arising out of, or in connection with, this AGREEMENT or its subject matter, regardless of whether BOARD, SYSTEM, UTMDACC or A&M knows or should know of the transactions contemplated possibility of such damages. 9.3 Beginning at the time when any LICENSED SUBJECT MATTER is being distributed or sold (including for the purpose of obtaining regulatory approvals) by LICENSEE or by a sublicensee, LICENSEE shall, at its sole cost and expense, procure and maintain commercial general liability insurance in amounts not less than $2,000,000 per incident and $2,000,000 annual aggregate, and LICENSEE shall use reasonable efforts to have the BOARD, SYSTEM, UTMDACC, A&M, their Regents, officers, and employees named as additional insureds. Such commercial general liability insurance shall provide: (i) product liability coverage; (ii) broad form contractual liability coverage for LICENSEE's indemnification under this Agreement or AGREEMENT; and (yiii) otherwise 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 any acts or omissions occurring its indemnification under this AGREEMENT. 9.4 LICENSEE shall provide UTMDACC and A&M with written evidence of such insurance within 30 days of its procurement. Additionally, LICENSEE shall provide UTMDACC and A&M with written notice of at or least fifteen (15) days prior to the Effective Time ("Indemnification Liabilities")cancellation, to non-renewal or material change in such insurance. 9.5 LICENSEE shall maintain such commercial general liability insurance beyond the same extent as provided in the Company's articles expiration or termination of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if this AGREEMENT during: (i) the use period that any LICENSED SUBJECT MATTER developed pursuant to this AGREEMENT is being commercially distributed or sold by LICENSEE or by a sublicensee or agent of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, LICENSEE; and (ii) the defendants in, or targets of, any five (5) year period immediately after such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims and.

Appears in 1 contract

Samples: Patent and Technology License Agreement (Ziopharm Oncology Inc)

Indemnification and Insurance. (a) The articles of incorporation From 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 Time, the rights thereunder as of Surviving Company shall and Parent shall cause the Effective Time of individuals Surviving Company to (i) indemnify and hold harmless each individual who at the Effective Time were directorsis, officers, employees or agents of the Company, unless such modification is required after 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 claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee was a director or officer of the Company or such Subsidiary or (B) acts or omissions by law. 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 (bincluding 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) Parent shall cause or (B), at, or at any time prior to, the Surviving CorporationEffective 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 Indemnitee), to the fullest extent permitted under applicable law or under Law, pursuant to the Surviving Corporation's articles Company Charter and the Organizational Documents as in effect on the date of incorporation or by-laws or this Agreement, and following the Continuation Effective Time, in the Memorandum and Articles of Association and in any indemnification written agreement in effect existence as of the date hereof, of this Agreement and previously made available to indemnify Parent providing for indemnification between the Company and hold harmless, each present any Indemnitee and former director, officer or employee (ii) assume all obligations of the Company or any of its and such Subsidiaries (collectively, the "INDEMNIFIED PARTIES") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with Indemnitees in respect to any of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement Company Charter and the Organizational Documents as in effect on the date hereofof this Agreement and, following the Continuation Effective Time, in each case for a period the Memorandum and Articles of six years after Association, and in any written agreement in existence as of the date hereofof this Agreement providing for indemnification between the Company and any Indemnitee and previously made available to Parent. In Without limiting the event of any such claimforegoing, actionParent, suit, proceeding or investigation (whether arising before or from and after the Effective Time) , shall cause, unless otherwise required by Law, the Memorandum and subject Articles of Association to contain provisions no less favorable to the specific terms 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 Company prior to the date hereof in respect of the D&O Insurance. If the Company for any indemnification contract, (i) after reason fails to obtain such “tail” insurance policies as of the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlementCompany shall, and Parent shall cause the Indemnified Parties shall cooperate 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 defense Company’s existing policies as of the date of this Agreement, or 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 (300%) of the annual premiums paid by the Company prior to the date hereof in respect 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 other rights to indemnification or contribution that any such matterindividual may have under the Company Charter, by contract or otherwise. An Indemnified Party shall have a right to participate in (but not control) the defense The obligations 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, Parent and the Surviving Corporation Company under this Section 5.08 shall bear not be terminated or modified in such a manner as to adversely affect the reasonable feesrights of any 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, costs and expenses the Surviving Company or any of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if their respective successors or assigns (i) consolidates, amalgamates with or merges into any other Person and is not the use of counsel chosen by the continuing or Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, Company 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 entity of such litigationconsolidation, claim amalgamation 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, 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 terms successors and assigns of Parent or the Surviving Company shall assume all of the settlement provide obligations thereof set forth in this Section 5.08. (e) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations is or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party has been in existence with respect to such matter. In no event shall the Surviving Corporation be liable Company or any of its Subsidiaries for any settlement effected without its of their respective directors, officers or other employees, it being understood and agreed that the indemnification provided for in Section 5.08(a) is not prior written consent. Any Indemnified Party wishing to claim indemnification under this Section 6.06(b), upon learning of or in substitution for any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have claims under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andpolicies.

Appears in 1 contract

Samples: Business Combination Agreement (NeoGames S.A.)

Indemnification and Insurance. (a) The articles Parent and Merger Sub agree that all rights to exculpation, indemnification and payment or reimbursement of incorporation fees and by-laws expenses incurred in advance of the Surviving Corporation shall contain provisions with respect final disposition of any claim related 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 and hold harmless, each 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 reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated by this Agreement), now existing in favor of the current or former directors, officers or employees, as the case may be (the "Indemnification LiabilitiesINDEMNIFIED PARTIES"), to of the same extent Company or its Subsidiaries as provided in the Company's articles their respective certificate of incorporation or by-laws (or comparable organizational documents) or in any applicable contract or agreement as shall survive the Merger and shall continue in full force and effect for a period of six (6) years from and after the Effective Time. For a period of six (6) years from and after the Effective Time, Parent and Surviving Company shall (i) maintain in effect (A) the current provisions regarding indemnification of officers and directors contained in the certificate of incorporation and bylaws (or comparable organizational documents) of each of the Company and its Subsidiaries and (B) any indemnification agreements of the Company and its Subsidiaries with any of their respective directors, officers and employees existing as on the date hereof, and (ii) jointly and severally indemnify and hold harmless the Indemnified Parties to the fullest extent permitted by applicable Law against any losses, claims, damages, liabilities, costs, expenses (including reimbursement for reasonable fees and expenses incurred in each case for a period advance of six years after the date hereof. In the event final disposition of any such claim, suit, proceeding or investigation to each Indemnified Party), judgments, fines and, subject to approval by Parent (which shall not be unreasonably withheld), amounts paid in settlement in connection with any threatened or actual claim, action, suit, proceeding or investigation to which such Indemnified Party is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that such individual is or was a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another person or (ii) this Agreement or any of the transactions contemplated hereby, whether asserted or arising before or after the Effective Time. (b) For a period of six (6) years from and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation Company shall assume either cause to be maintained in effect the current policies of directors' and direct all the defense thereof, including settlement, officers' liability insurance and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen fiduciary liability insurance maintained by the Surviving Corporation to represent such Indemnified Party would present such counsel with Company or its Subsidiaries or provide substitute policies or purchase a conflict "tail policy," in either case, of interest, (ii) at least 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 same coverage and amounts containing terms and conditions 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 Partyare, in the exercise of aggregate, no less advantageous to the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party insured with respect to such matter. In claims arising from facts or events that occurred on or before the Effective Time, except that in no event shall the Surviving Corporation Company be liable for any settlement effected without its prior written consent. Any Indemnified Party wishing required 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) pay with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification insurance policies in respect of any one policy year more than 300% of the annual premium paid by the Company for such claim insurance for the year ending December 31, 2005 (the "MAXIMUM AMOUNT"), and if the Surviving Company is unable to obtain the insurance required by this SECTION 5.12 it shall obtain as much comparable insurance as possible for an annual premium equal to the Maximum Amount. (c) The provisions of this SECTION 5.12 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives. Parent shall advance expenses, including reasonable fees and expenses of counsel, to an Indemnified Party as incurred to the fullest extent permitted under applicable Law upon receipt from the applicable Indemnified Party of an undertaking to repay such advances if it is ultimately determined such person is not entitled to indemnification. (d) The rights of the Indemnified Parties and their heirs and legal representatives under this SECTION 5.12 shall be in addition to any rights such Indemnified Parties may have under the certificate of incorporation or claims by-laws (or comparable organizational documents) of the Company or any of its Subsidiaries, or under any applicable agreement or Law. (e) In the event that either Parent or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other persons, (ii) transfers 50% or more of its properties or assets to any person or (iii) enters into any similar transaction, then and in each case, proper provision shall continue until be made so the disposition of any applicable successors and all such claims andassigns or transferees assume the obligations set forth in this SECTION 5.12.

Appears in 1 contract

Samples: Merger Agreement (CVC European Equity IV (AB) LTD)

Indemnification and Insurance. (a) The articles Subject to Section 5.3(d), the Certificate of incorporation Incorporation and byBy-laws 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 repealed or otherwise repealed modified for a period of six years after from the Effective Time date of this Agreement in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who at the Effective Time or at any time prior thereto 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 CorporationThe Company shall, to the fullest extent permitted under applicable law or under and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time, the Surviving Corporation's articles of incorporation or by-laws or any indemnification agreement in effect as of the date hereofCorporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, director and officer or employee of the Company or any of its Subsidiaries Company, their respective heirs and beneficiaries (collectively, the "INDEMNIFIED PARTIESIndemnified Parties") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damagesdamages and liabilities incurred in connection with, liabilities and amounts paid in settlement in connection with of, any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative and wherever asserted, (x) brought or filed, arising out of or pertaining to (x) the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions or alleged acts or omissions taken in their capacity as an officer or director and occurring at or prior to the Effective Time ("Indemnification Liabilities")Time, to the same extent as provided in the Company's articles respective Certificate of incorporation or byIncorporation and By-laws Laws of the Company or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereofEffective Time. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time shall be reasonably satisfactory to the Surviving Corporation, (ii) the Company shall compensate each member of the Board on the date of this Agreement who spends time after May 30, 2006, and before the Effective Time, as applicable, reasonably necessary to defend any matter relating to the transactions contemplated by this Agreement to which the indemnity set forth in this Section 5.3 may apply based on a rate of $300 per hour and shall reimburse such Board member for any reasonable expenses incurred in connection therewith within five days of receipt of any invoice or statement for such compensation and expenses, (iii) after the Effective Time, the Surviving Corporation shall assume directly pay the reasonable fees and direct all the defense thereofexpenses of such counsel, including settlementpromptly after statements therefor are received, and shall compensate each member of the Indemnified Parties Board on the date of this Agreement who spends time after the Effective Time reasonably necessary to defend any matter relating to the transactions contemplated by this Agreement to which the indemnity set forth in this Section 5.3 may apply based on a rate of $300 per hour and shall reimburse such Board member for any reasonable expenses incurred in connection therewith within five days of receipt of any invoice or statement for such compensation and expenses, and (iv) the Surviving Corporation will cooperate 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; provided, claim or proceedinghowever, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 consent (but the failure so to notify which consent 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 Corporationbe unreasonably withheld, delayed or conditioned). 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; and provided, under applicable standards of professional conductfurther, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrarythat, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andclaims. The Indemnified Parties as a group may retain only one law firm in each jurisdiction to represent them with respect to any single action unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. The indemnity agreements of the Surviving Corporation in this Section 5.3(b) shall extend, on the same terms to, and shall inure to the benefit of and shall be enforceable by, each person or entity who controls, or in the past controlled, any present or former director, officer or employee of the Company or any of its Subsidiaries. The indemnity agreements of the Surviving Corporation in this Section 5.3(b) shall be in addition to any rights provided to any Indemnified Parties under any contract with the Company, including without limitation, any policy of insurance, and shall in no way limit any additional rights such parties may have under such agreements. (c) Prior to the Effective Time, Parent shall cause the Company to obtain (to the extent not already obtained) directors' and officers' liability insurance covering those persons who are currently covered by the Company's directors' and officers' liability insurance policy (a copy of which has been made available to Parent) and who will not be officers or directors of the Company after the Effective Time (the "Covered Persons"), with terms (including the amounts of coverage and the amounts of deductible, if any) that are comparable to the terms now applicable to directors and officers of Parent, or if more favorable to the Company's directors and officers, the terms now applicable to them under the Company's current policies, and with insurers of no lesser financial standing than the insurers issuing the Company's current policies on a six year "trailing" (or "run-off") basis; provided, however, that in no event shall the Company be required to expend an amount in excess of 1,800% of the annual premium currently paid by the Company for such coverage; and provided further, that if the premium for such coverage exceeds such amount, the Company shall purchase a policy with the greatest coverage available for such 1,800% of the annual premium. (d) This Section 5.3 shall survive the consummation of the Merger, is intended to benefit the Company, the Surviving Corporation and the Indemnified Parties, shall be binding on all successors and assigns of the Surviving Corporation and shall be enforceable by the Indemnified Parties. In the event that the Surviving Corporation or any of their successors or assigns (i) consolidates or merges into any other person or entity and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person or entity, then and in such case, proper provisions shall be made so that the successors and assigns of the Surviving Corporation assume the obligations of the Surviving Corporation set forth in this Section 5.3. (e) From and after the Effective Time, Parent unconditionally guarantees directly and as surety the full payment and performance of the obligations of the Surviving Corporation under this Section 5.3 and agrees that the Indemnified Parties need not exhaust remedies or make a demand on the Surviving Corporation before obtaining indemnity under such guaranty.

Appears in 1 contract

Samples: Merger Agreement (Chaparral Resources Inc)

Indemnification and Insurance. (a) The articles of incorporation Parent and by-laws of the Surviving Corporation shall contain provisions with respect Merger Sub agree that all rights to indemnification substantially by the Company now existing in favor of each person who is now, or has been at any time prior to the same effect as those set forth in date hereof or who becomes prior to the articles of incorporation and the by-laws Effective Time an officer or director 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 and hold harmless, each present and former director, officer Company Subsidiary or an employee of the Company or any Company Subsidiary or who acts as a fiduciary under any of its Subsidiaries the Company Employee Benefit Plans (collectivelyeach an “Indemnified Party”) as provided in the Company’s certificate of incorporation or bylaws, in each case as in effect on the "INDEMNIFIED PARTIES") against date of this Agreement, or pursuant to any costs or expenses (including reasonable attorneys' feesother agreements in effect on the date hereof and listed on Schedule 3.18(a)(iv), judgmentscopies of which have been provided to Parent, finesincluding provisions relating to the advancement of expenses incurred in the defense of any action or suit, shall survive the Merger 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. (b) For six 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 liabilities, fees, expenses, judgments and amounts paid fines arising in settlement whole or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising part out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts actions or omissions in their capacity as such occurring at or prior to the Effective Time ("Indemnification Liabilities"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 nothing herein shall impair any rights to indemnification of any Indemnified Party referred to in clause (a) above. (c) Parent shall cause the same extent as provided in Surviving Corporation to maintain the Company's articles of incorporation or by-laws or any applicable contract or agreement as ’s officers’ and directors’ liability insurance policies, in effect on the date hereofof this Agreement (the “D&O Insurance”), in each case for a period of not less than six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) 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 Effective Time; provided, further, 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 annual premiums necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, Parent and the Surviving Corporation shall assume procure and direct all maintain for such six-year period as much coverage as reasonably practicable for the defense thereof, including settlement, and the Indemnified Parties shall cooperate in the defense of any such matterMaximum Amount. 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 proceeding, such Indemnified Party Parent shall have the right to employ separate counsel cause coverage to be extended under the D&O Insurance by obtaining a six-year “tail” policy on terms and to participate in conditions no less advantageous than the defense of such litigation, claim or proceedingD&O Insurance, and such “tail” policy shall satisfy the Surviving Corporation shall bear the reasonable fees, costs and expenses provisions of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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(b6.9(c), upon learning . (d) The obligations of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but under this Section 6.9 shall survive the failure so to notify consummation of the Merger and shall not relieve 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). (e) If Parent or the Surviving Corporation from or 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 their respective successors or more Indemnified Parties. Notwithstanding anything to the contrary, in the event 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 any claim the successors and assigns of Parent or claims for indemnification are asserted or made within such six-year periodthe Surviving Corporation, all rights to indemnification as the case may be, shall assume the obligations set forth in respect of any such claim or claims shall continue until the disposition of any and all such claims andthis Section 6.9.

Appears in 1 contract

Samples: Merger Agreement (Charlotte Russe Holding Inc)

Indemnification and Insurance. (a) The articles SBFM hereby acknowledges that JGH's activities in connection with the Project are supplied only as results of incorporation laboratory experiments and by-laws any action taken by SBFM thereon and any outcome thereof are entirely the responsibility of SBFM. Neither the Surviving Corporation shall contain provisions with respect 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 indemnification substantially 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 the same effect as those set forth in the articles of incorporation indemnify, defend and the by-laws of the Company on the date hereofhold harmless Institution, which provisions shall not be amendedits trustees, 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 Companyaffiliates, unless such modification is required after the Effective Time by law. employees, agents, medical and professional staff, contractors, students, and their respective successors and assigns and Principal Investigator (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 and hold harmless, each present and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIESInstitution lndemnitees") against from any costs or expenses and all liabilities, loss, expense (including reasonable attorneys' attorney fees), judgments, fines, losses, ) or damages they may suffer as a result of claims, damagesdemands, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding costs or investigation, whether civil, criminal, administrative or investigative, (x) judgements against them arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate in the defense of any such matter. An Indemnified Party shall have a right to participate in (but not control1) the defense of any such matter with its own counsel and at its own expense. Notwithstanding the right conduct of the Surviving Corporation to assume and control Project or the defense of such litigation, claim or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise performance 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) Agreement in accordance with the terms of the settlement provide Protocol; or (2) SBFM's use of the results or infringement of third party property rights; or (3) SBFM's negligence, wilful misconduct or breach of applicable laws; provided, however, that any such liability, loss, expense or damages is not the Indemnified Party shall have no responsibility result of failure by an Institution lndemnitee to comply with the signed Protocol for the discharge of any settlement amount and impose no other obligations Project or duties on the Indemnified Party and the 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such 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 otherwise in the kind appropriate to the circumstances insurance program, on either an indemnity or self-insured basis, to fully perform their responsibilities hereunder. Principal Investigator represents that he shall secure and maintain in full force and effect throughout the performance of the Agreement (and following termination of the Agreement to cover any claims andarising from the Agreement) membership in the Canadian Medical Protective Association ("CMPA") or equivalent professional liability insurance coverage. Upon request from any Party, the other Party will transmit a certificate or attestation of insurance to the requesting Party. This Section of this Agreement shall survive any termination and shall continue to be in effect indefinitely.

Appears in 1 contract

Samples: Research Agreement (Sunshine Biopharma, Inc)

Indemnification and Insurance. (a) The articles of incorporation Licensee shall indemnify, defend 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 hold harmless HJF and the by-laws of the Company on the date hereofits current and former directors, which provisions shall not be amendedboard members, 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 directorstrustees, officers, employees employees, and agents and their respective successors, heirs and assigns (collectively, the “Indemnitees”), from and against any and all third party claims, liabilities, costs, expenses, damages, deficiencies, losses or agents 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 to (i) 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 (iii) the breach of any representation or warranty by Licensee in 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 Section and will cooperate with and authorize Licensee to carry out the sole management and defense of such Claim. In the event HJF decides to employ its own separate counsel in connection with the sole management and defense by Licensee of the CompanyClaim, unless the employ of such modification is required after 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 Effective Time by lawprior written approval of Licensee. (b) Parent HJF shall cause the Surviving Corporationindemnify, 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 defend and hold harmless, each present harmless the Licensee and its current and former directordirectors, officer or employee of the Company or any of its Subsidiaries board members, trustees, officers, employees, and agents and their respective successors, heirs and assigns (collectively, the "INDEMNIFIED PARTIES") “Licensee Indemnitees”), from and against any costs and all third party claims, liabilities, costs, expenses, damages, deficiencies, losses or expenses obligations of any kind or nature (including reasonable attorneys' fees)’ fees and other costs and expenses of litigation) (collectively “Claims”) based upon, judgmentsarising out of, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising otherwise relating to Claims that arise out of or pertaining are related to the transactions contemplated breach of any representation or warranty by HJF in this Agreement or (y) otherwise 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 Section and will cooperate with respect and authorize HJF to any acts or omissions occurring at or prior to carry out the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles sole management and defense of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereofsuch Claim. In the event Licensee decides to employ its own separate counsel in connection with the sole management and defense by HJF of the Claim, the employ of such counsel shall beat Licensee’s sole expense. Licensee will not compromise or settle any such claim, action, suit, action or proceeding or investigation (whether arising before or after the Effective Time) and subject to indemnification pursuant to this Section without the specific terms prior written approval of any indemnification contractHJF. (c) The indemnifying Party shall, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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, provide attorneys reasonably acceptable to the other to defend against any actions brought or filed with respect to the subject of indemnity contained herein, whether or not such actions are rightfully brought. (d) Beginning at the time any such product, process or service is being commercially distributed or sold (other than for the purpose of obtaining regulatory approvals) by Licensee or by any sublicensee or agent 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. Notwithstanding During clinical trials of any such product, process, or service, Licensee shall, at its sole cost and expense, procure and maintain commercial general liability insurance in such equal or lesser amount as HJF shall require, naming the right 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 Surviving Corporation limits described above (including deductibles or retentions that are in excess of $[***] annual aggregate) such self-insurance program must be acceptable to assume and control the defense 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 litigationinsurance upon request of HJF. Licensee shall provide HJF with written notice at least [***] days prior to the cancellation, claim non-renewal, or proceedingmaterial change in such insurance; if Licensee does not obtain replacement insurance providing comparable coverage within such [***] day period, such Indemnified Party HJF shall have the right to employ separate counsel and to participate terminate this Agreement in accordance with Section 10.2(c). (f) Licensee shall maintain such commercial general liability insurance beyond the defense expiration or termination of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if this Agreement (i) during the use 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 counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, Licensee and (ii) a period after 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 period referred to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iiif)(i) 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 consentabove, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to such matter. In period 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more less than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims and[***] years.

Appears in 1 contract

Samples: Exclusive License Agreement (Baudax Bio, Inc.)

Indemnification and Insurance. (a) The articles of incorporation Parent and by-laws Merger Sub agree that all rights to indemnification existing in favor 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 current 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 former directors, officers, officers and 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 and hold harmless, each present and former director, officer or employee of the Company or any of its Subsidiaries (collectivelythe “Indemnified Persons”) as provided in the Articles of Incorporation or Bylaws, or the articles of organization, bylaws or similar constituent documents of any of the Company’s Subsidiaries or 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 foregoing, the "INDEMNIFIED PARTIES"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 respect of such threatened or actual claim, action, suit, demand, notice, proceeding or investigation, whether civil, criminal, administrative or investigative (an “Action”)), and advance funds in respect of each of the foregoing) each Indemnified Person against any fees, costs or expenses (including advancing reasonable attorneys' fees’ 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 claimactual or threatened Action, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) 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 or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to Company and including any acts or omissions occurring at or prior to in connection with this Agreement and the Effective Time ("Indemnification Liabilities"transactions contemplated hereby), except for in any case, any claim, judgments, fines, penalties and amounts to the same extent as provided in the Company's articles be paid which relate to any act or omission which constitutes a violation of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case Law and except for a period of six years after the date hereofother 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 Surviving Entity shall not be obligated to pay the fees and expenses of more than one counsel (selected by a plurality of applicable Indemnified Persons) for all Indemnified Persons in any jurisdiction with respect to any single Action, suit, proceeding, inquiry or 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 Effective Time, and the Surviving Entity shall maintain with reputable and financially sound carriers, tail policies to the current directors’ and officers’ liability insurance and fiduciaries liability insurance policies maintained on the date of this Agreement by the Company and its Subsidiaries, which tail policies and fiduciaries liability policies (i) shall be effective for a period from the Effective Time through and including the date six years after the Closing Date with respect to claims arising from facts or events that existed or occurred prior to or at the Effective Time and (ii) shall contain coverage that is at least as protective to the Persons covered by such existing policies (a complete and accurate copy of which has been made available to Parent) and shall in any event include nonmanagement directors Side A (DIC) coverage. The Surviving 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 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 aggregate amount currently paid by the Company for such coverage. The Surviving Entity may substitute an alternative for the tail policies that affords, in the aggregate, no less favorable protection to such officers and directors; provided, that any such alternative is approved by the Company’s 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, action, suit, proceeding or investigation (whether arising before before, at or after the Effective Time) and subject is made against any Indemnified Person on or prior to the specific terms sixth anniversary of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate in the defense provisions 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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)5.7 shall continue in effect until the final, upon learning non-appealable disposition of any such claim, action, suit, proceeding or investigation. (e) In the event that the Surviving Entity, Parent 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 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 promptly notify Parent and succeed to the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under obligations set forth in this Section 6.06(b5.7. (f) except Nothing in this Agreement is intended to, shall be construed 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 or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in any jurisdiction) existence with respect to each such matter unless there isthe Company or any of its Subsidiaries or their respective officers, under applicable standards of professional conductdirectors and employees, a conflict on any significant issue between it being understood and agreed that the positions of any two indemnification provided for in this Section 5.7 is not prior to or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims substitution for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim claims under any such policies, provided, that for avoidance of doubt, neither Parent nor the Surviving Entity shall be required to make any payments thereunder or claims shall continue until the disposition of any and all such claims andin connection therewith.

Appears in 1 contract

Samples: Merger Agreement (Meadow Valley Corp)

Indemnification and Insurance. (a) The articles of incorporation 10.1 LICENSEE agrees to hold harmless 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 hereofindemnify BOARD, which provisions shall not be amendedINVENTORS, 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 directorsSYSTEM, UT SOUTHWESTERN, its Regents, officers, employees or and 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 and hold harmless, each present and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES"“Indemnitees”) from and against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damagesdemands, liabilities and amounts paid in settlement in connection with or causes of action whatsoever, relating to this AGREEMENT, brought by any claimthird party, actionincluding without limitation those arising on account of any injury or death of persons or damage to property caused by, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of, or resulting from, the exercise or practice of the license granted hereunder by LICENSEE, its AFFILIATES or pertaining their officers, employees, agents or representatives. The obligations of LICENSEE stated in this Paragraph 10.1 shall apply only if an Indemnitee promptly notifies LICENSEE in writing following receipt of written notice of any claim or suit brought against Indemnitee in respect of which Indemnitee intends to invoke the provisions of this Paragraph 10.1. Subject to the transactions contemplated by this Agreement or (y) otherwise with respect statutory duties of the Texas Attorney General, LICENSEE shall have the right to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate in control the defense of any such matter. An Indemnified Party shall have a action, including the right to participate in (but select counsel to defend an Indemnitee and LICENSEE and to settle any claim or suit with the approval of SYSTEM and UT SOUTHWESTERN, which approval will not control) be unreasonably withheld, conditioned or delayed. LICENSEE shall keep the Indemnitee informed on a regular basis of its defense of any such matter with its own counsel and claims pursuant to this Paragraph 10.1. 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 own sole cost and expense, procure and maintain commercial general liability insurance 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 BOARD, SYSTEM, UT SOUTHWESTERN, its officers, employees and agents named as additional insureds. Notwithstanding the right Such commercial general liability insurance will provide (i) 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 the Surviving Corporation insurance coverage required will not be construed to assume and control the defense 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 litigationinsurance upon BOARD’S request. LICENSEE will provide BOARD with written notice of at least 15 days prior to the cancellation, claim non-renewal or proceeding, material change in such Indemnified Party shall have insurance. 10.4 LICENSEE will maintain such commercial general liability insurance beyond the right to employ separate counsel and to participate in the defense expiration or termination of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if this AGREEMENT during (i) the use 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 counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, LICENSEE; and (ii) the defendants in, or targets of, any 5 year period immediately after such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims and.

Appears in 1 contract

Samples: Exclusive Patent License Agreement (Peregrine Pharmaceuticals Inc)

Indemnification and Insurance. The Purchaser and Acquisition Sub agree that all rights to indemnification, advancement of expenses, exculpation, limitation of liability and any and all similar rights now existing in favor of the employees, agents, directors or officers of the Company and its subsidiaries (athe "Indemnified Parties") The articles of incorporation and as provided in the charter or by-laws or other agreements of the Company in effect on the date hereof (copies of which have been made available to the Purchaser), shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that if any claim or 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 contain provisions with respect pay to such Indemnified Party in advance of final disposition any expenses, including but not limited to counsel fees and disbursements, incurred by any such Indemnified Party in defending any action, suit or proceeding upon receipt of an undertaking (which need not be secured or subject to bond or other requirement) by or on behalf of such Indemnified Party to repay the amounts so paid if it shall ultimately be determined that indemnification substantially of such expenses is not authorized under such charter, bylaws or other agreement referred to the same effect above. The Purchaser agrees to provide each individual who served as those set forth in the articles of incorporation and the by-laws a director or officer of the Company on or the date hereofsubsidiaries at any time prior to the Effective Time with liability insurance, which provisions shall not be amendedeither directly or through the Purchaser's umbrella policy, modified or otherwise repealed for a period of six years after the Effective Time on terms no less favorable in coverage and amount than any manner that would adversely affect the rights thereunder as of applicable insurance in effect immediately prior to the Effective Time (including any insurance maintained by Purchaser); provided, however, that the Purchaser may reduce the coverage and amount of individuals who at liability insurance to the extent that the cost thereof would exceed 300% of the cost of any such insurance in effect immediately prior to the Effective Time were Time, 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, officers, employees or agents of the Company, unless such modification is required . If at any time after the Effective Time by law. (b) Parent shall cause the Surviving CorporationCorporation or a subsidiary fails to 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 a subsidiary could not do so). In addition to the foregoing, the Purchaser and the Company, jointly and severally, shall, to the fullest extent permitted under by applicable law or under the Surviving Corporation's articles of incorporation or by-laws or any indemnification agreement in effect as of the date hereoflaw, to indemnify and hold harmless, each present harmless the Indemnified Parties against all costs and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) investigation arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts actions or omissions occurring at in the applicable Indemnified Party's capacity as an agent, employee, officer or director of the Company or a subsidiary prior to the Effective Time until the expiration of the applicable statute of limitations relating thereto ("Indemnification Liabilities"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, to the same extent as provided in the Company's articles of incorporation or by-laws laws, charter, or other agreements of the Company do not otherwise provide the Indemnified Parties with rights to indemnification, advancement of expenses, exculpation, and 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 (including reasonable attorney's fees), judgements, fines, loses, claims, damages, liabilities and settlement amounts paid in connection with 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 investigation arising out of actions or omissions of the Indemnified Parties in connection with the Transactions until the expiration of the applicable statute of limitations relating thereto (whether arising before and shall pay any expenses in advance of the final disposition of such action or after proceeding to the Indemnified Parties). The provisions of this Section 5.6 shall survive the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate in be deemed third party beneficiaries of this Section 5.6 and shall be entitled to bring actions to enforce 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 obligations of the Surviving Corporation to assume Purchaser and control the defense of such litigation, claim or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise Acquisition Sub under this Section 5.6. The rights of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 Parties under this Section 6.06(b)5.6 are not exclusive, upon learning but shall be cumulative with any other rights of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims and.

Appears in 1 contract

Samples: Merger Agreement (Liberty Financial Companies Inc /Ma/)

Indemnification and Insurance. (a) 2.1 The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation and the by-laws of the Company on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Effective 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 Corporationshall, to the fullest maximum 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 hereofby Applicable Law, to indemnify indemnify, defend and hold harmlessharmless the LLCP Representative, each present any LLCP representatives participating in the Operating Committee, LLCP and former directorthe employees, officer or employee partners, principals, agents, attorneys, accountants, representatives and Affiliates of the Company or any of its Subsidiaries LLCP (including LLCP Inc.) (individually, an "LLCP Party" and, collectively, the "INDEMNIFIED PARTIESLLCP Parties") ), from and against any costs or expenses (including reasonable attorneys' fees)all costs, expenses, liabilities, claims, judgments, fines, damages and losses, claimsincluding all attorneys' fees and the cost of preparation and investigation, damages, liabilities and amounts paid in settlement incurred in connection with any claimthreatened, action, suit, proceeding pending or investigationcompleted action or proceeding, whether civil, criminal, administrative or investigativeinvestigative (collectively, (x) "Liabilities and Costs"), arising out of or pertaining in any way related to the transactions contemplated 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 this Agreement any LLCP Party, the Company shall advance (within five (5) Business Days of such request) any and all expenses, including any and all attorneys' fees and the cost of any investigation and preparation incurred in connection with any matter for which such LLCP Party is or (y) otherwise may be entitled to indemnification hereunder; provided, however, that if and to the extent that a court of competent jurisdiction finally determines that such LLCP Party is not permitted to be indemnified with respect to such matter under Applicable Law, the Company shall be entitled to be reimbursed for any acts expenses so advanced. The Company shall also indemnify each LLCP Party from and against any and all Liabilities and Costs incurred in connection with any claim or omissions occurring at action brought to enforce such LLCP Party's rights under this Section 2, or prior 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 Effective Time ("Indemnification Liabilities")amount of all such Liabilities and Costs paid or payable by any LLCP Party in such proportion as is appropriate to reflect not only the relative benefits received by the Company, on the one hand, and LLCP, on the other hand, but also the relative fault of each, as well as any other equitable considerations. The Company's reimbursement, indemnity and contribution obligations shall be in addition to any liability the Company may otherwise have at law or under any other agreement, including the Securities Purchase Agreement, and such obligations shall extend, upon the same terms, to all LLCP Parties. This Section 2 shall survive the same extent termination of this Agreement indefinitely. 2.3 During the term of this Agreement, the Company shall maintain in force and 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 provided are customary and appropriate for publicly traded companies operating in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andindustry.

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 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 articles any breach of incorporation and by-laws of any representation or warranty made by the Surviving Corporation shall contain provisions with respect Supplier in or pursuant 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. this Agreement; (b) Parent shall cause any default in the Surviving Corporation, to performance of any of the fullest extent permitted under applicable law covenants or under agreements made by the Surviving Corporation's articles of incorporation Supplier in this Agreement; (c) any claim or by-laws action by any consumer or any indemnification agreement in effect as of the date hereof, to indemnify and hold harmless, each 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 reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) other third party arising out of the production or pertaining 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 the transactions contemplated by this Agreement indemnify ENBC or (y) otherwise any ENBC Subsidiary or ENBC Franchisee with respect to any acts claim or omissions occurring at or prior action to the Effective Time 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 ("Indemnification Liabilities"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 same extent as provided in such claim or action is attributable to the Company's articles use by the Supplier of incorporation the Formulations, Procedures and Specifications or by-laws is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any applicable contract ENBC Subsidiary, ENBC Franchisee or agreement as in effect on the date hereofAuthorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, in each case for a period of six years after the date hereof. In the event of or conflict with, any such claimtrademarks, actiontrade names or trade dress, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific 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 contractobligation under Section 11.1 or Section 11.2 with counsel of such party's selection, (i) after that each party will promptly give the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlementother 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 Indemnified Parties shall cooperate 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 proceedingaction by the other party hereunder. 11.4 ENBC and the Supplier acknowledge and agree that ENBC, such Indemnified Party shall have ENBC Subsidiaries and ENBC Franchisees, on the right to employ separate counsel and to participate in the defense of such litigation, claim or proceedingone hand, and the Surviving Corporation 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 bear 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 reasonable feesevent the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), costs inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and expenses 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 such separate counsel worker's compensation and shall pay such feesemployer's liability insurance that comply with all state and federal laws, costs and expenses promptly after receipt (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 invoice from such Indemnified Party if additional insured and containing endorsements (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 providing that the Indemnified Party shall have no responsibility for Supplier's comprehensive general liability coverage (including products liability) (the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims and"Supplier CGL

Appears in 1 contract

Samples: Project and Approved Supplier Agreement (Einstein Noah Bagel Corp)

Indemnification and Insurance. (a) The articles of incorporation Merger Agreement provides that from and by-laws of after the Effective Time, the Surviving Corporation shall contain provisions with respect must indemnify, defend and hold harmless any person who is now, or has been at any time prior 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 who becomes prior to 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 directorsTime, 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 and hold harmless, each present and former director, an officer or employee director (the "Indemnified Party") of the Company or any of its Subsidiaries (collectivelyagainst all losses, the "INDEMNIFIED PARTIES") against any claims, damages, liabilities, costs or and expenses (including reasonable attorneys' feesattorney's fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement (provided that any such settlement is effected with the written consent of Parent or the Surviving Corporation, such consent not to be unreasonably withheld) in connection with any claim, actual or threatened action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject (each a "Claim") to the specific terms of extent that any indemnification contractsuch Claim is based on, or arises out of, (i) the fact that such person is or was a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the Merger Agreement, or any of the transactions contemplated thereby, in each case to the extent that any such Claim pertains to any matter or fact arising, existing, or occurring prior to or at the Effective Time, regardless of whether such Claim is asserted or claimed prior to, at or after 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 at the date of the execution of the Merger Agreement, including provisions relating to advancement of expenses incurred in the defense of any action or suit. In addition, the Merger Agreement provides that for a period of six years after the Effective Time, the Surviving Corporation shall assume must maintain the Company's existing policies of directors' and direct all officers' liability insurance (or a "tail" policy), for the defense thereofbenefit of those persons who are covered by the Company's directors' and officers' liability insurance policies as of the date of the Merger Agreement, including settlement, and to the Indemnified Parties shall cooperate in the defense of any extent that such matter. An Indemnified Party shall have a right liability insurance can be maintained at an annual cost 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 of not greater than 200 percent of the premium for the current Company directors' and control the defense of officers' liability insurance, provided that if such litigationinsurance (or "tail" policy) cannot be so maintained at such cost, claim or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses must maintain as much 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 insurance as can be so maintained at a cost equal 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 200 percent of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice current annual premiums of the institution of Company for such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andinsurance.

Appears in 1 contract

Samples: Merger Agreement (Airtours PLC)

Indemnification and Insurance. (a) The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially Without limiting any other rights available to the same effect as those set forth in ROC Indemnified Parties (hereinafter defined) TPCO and its affiliated entities (the articles “TPCO Entities”) shall indemnify, defend and hold ROC and its affiliates (and each of incorporation and the by-laws of the Company on the date hereoftheir respective members, which provisions shall not be amendedmanagers, 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 employees, agents of the Companyand affiliates, unless such modification is required after the Effective Time by law. (b) Parent shall cause the Surviving Corporationas applicable, 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 and hold harmless, each present and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES"“ROC Indemnified Parties”) harmless from and against any costs or and all obligations, damages, losses, expenses (including reasonable outside attorneys' fees), judgmentscauses of action, finesclaims or demands (collectively, losses“Losses”) incurred by such ROC Indemnified Parties arising from any third-party demands, claims, damagesactions, liabilities causes of action, suits, proceedings, investigations or inquiries, or any settlement thereto, and amounts paid in settlement all related expenses, including, but not limited to, all litigation expenses (including reasonable outside attorneys’ fees and court costs) (all of the foregoing, collectively, “Claims”) that arise from or in connection with the business or other activities of the TPCO Entities (or any claimof them), actionpast, suit, proceeding present or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining future except to the transactions contemplated extent caused by this Agreement gross negligence or (y) otherwise with respect willful misconduct of any ROC Indemnified Party. If ROC becomes aware of any circumstances of any Claim that might or does give rise to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities")a claim for indemnification, to the same extent as provided then ROC shall promptly notify TPCO in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event writing of any such claim, cause of action, suitclaim or demand, proceeding and TPCO shall take control of the defense and investigation of such Claim and employ counsel reasonably acceptable to ROC, at TPCO’s sole cost and expense. Failure or investigation (whether arising before or after the Effective Time) and subject delay in providing such notice shall not relieve TPCO of its indemnification obligations, except to the specific terms extent TPCO demonstrates that the defense or 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 indemnification contract, settlement that (i) after provides for any relief other than the Effective Timepayment of monetary damages payable solely by TPCO, (ii) includes an admission of wrongdoing on the Surviving Corporation shall assume 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 ROC Indemnified Party of a release from all liability in respect thereof. The ROC Indemnified Party will have the right, but not the obligation, to employ separate counsel and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate participate in the defense of any such matterClaim 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). An 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 have a right in no event settle any Claim without the prior consent of TPCO, such consent not to participate in (but not control) be unreasonably withheld, conditioned or delayed. TPCO shall pay for reasonable expenses to the defense ROC Indemnified Party on reasonable intervals as an integral part of any such matter with its own counsel and at its own expenseindemnification obligations hereunder. Notwithstanding the right The obligations of the Surviving Corporation to assume and control the defense TPCO Entities under this Section 7(a) shall survive for a period of such litigation, claim or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, five (5) years and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party TPCO Entities shall have no responsibility for the discharge of any settlement amount and impose no other indemnification obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party under this Agreement with respect to such matterany Claims that first arise after the five (5)-year anniversary of this Agreement. In no event shall For the Surviving Corporation be liable for any settlement effected without its prior written consent. Any Indemnified Party wishing to claim indemnification under avoidance of doubt, the obligations in this Section 6.06(b), upon learning 7(a) shall continue to apply after the end of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation five (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) 5)-year period with respect to each any Claims arising during such matter unless there isfive (5)-year period. (b) TPCO shall maintain, under applicable standards and cause its affiliates to maintain, insurance with respect to its businesses and operations for a period of professional conduct, a conflict not fewer than two (2) years following the date hereof in amounts and with coverages that are not materially less than that in effect on any significant issue between the positions of any two or more date hereof and shall provide evidence thereof on request. The ROC Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within Parties and their successors and assigns shall be listed as an additional insured on 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 andpolicies.

Appears in 1 contract

Samples: Modification Agreement (TPCO Holding Corp.)

Indemnification and Insurance. (a) The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation and the by-laws of the Company on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Effective 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 To the fullest extent permitted permissible under applicable law or under Maryland law, the Surviving Corporation's articles of incorporation or by-laws or any indemnification agreement in effect as of the date hereof, to Company shall indemnify and hold harmlessharmless Executive for and against any and all losses, each present 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 former directorall other charges paid or payable in connection with any threatened, officer pending or employee 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 Subsidiaries Affiliates (collectively, the "INDEMNIFIED PARTIES") against any costs or expenses (including reasonable attorneys' fees“Indemnified Losses”), judgmentsand at Executive’s election, fines, losses, claims, damages, liabilities and amounts paid in settlement shall defend Executive in connection with any claimof 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 Indemnified Losses, actionand shall, suitupon Executive’s written request, proceeding or investigationprovide copies of such insurance policies and endorsements and certificates evidencing such coverage. The Company shall advance to Executive Indemnified Losses as, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining when and to the transactions contemplated extent actually incurred or suffered by this Agreement or (y) otherwise Executive. In connection with respect to any acts or omissions occurring at or prior request for such advance of Executive’s Indemnified Losses, Executive shall execute and deliver to the Effective Time ("Indemnification Liabilities")Company an undertaking to repay any amounts paid, advanced, or reimbursed by the Company for such Indemnified Losses to the same extent as provided in that it is ultimately determined, following the Company's articles final disposition of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, actionthat Executive is not entitled to indemnification hereunder. The foregoing indemnification, suit, proceeding or investigation (whether arising before or after the Effective Time) insurance and subject adverse obligations shall not apply to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen brought by the Surviving Corporation Company or its Affiliates to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all enforce its 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andAgreement.

Appears in 1 contract

Samples: Employment Agreement (CorEnergy Infrastructure Trust, Inc.)

Indemnification and Insurance. (a) The articles of incorporation A. LIXTE shall indemnify, defend 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 hereofhold harmless INSTITUTION, 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 directorsits trustees, officers, agents, faculty, directors, employees or agents of the Companyand PRINCIPAL INVESTIGATOR, unless such modification is required after the Effective Time by law. (band any named co-investigator) 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 from and hold harmless, each 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 reasonable attorneys' fees), judgments, fines, lossesdemands, claims, damagesactions, liabilities and amounts paid in settlement in connection with proceedings or costs of judgments which may be made or instituted against any claimof them by reason of personal injury (including death) to any person, actionor damage to property, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining connected with the failure of the STUDY DRUG to meet product specifications or from its use or misuse of RESULTS (excluding any claim alleging that LIXTE is not permitted to use the transactions contemplated by this Agreement RESULTS or claim regarding the accuracy or completeness of the RESULTS). As a precondition for such indemnity, INSTITUTION agrees: (yi) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event promptly notify LIXTE of any such claim, actionproceeding, investigation or suit; (ii) to cooperate fully with LIXTE, at LIXTE’s expense, in defending against such claim, proceeding, investigation or suit, proceeding or investigation (whether arising before or after and to tender to LIXTE the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel foregoing; and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise event of the Indemnified Party's reasonable judgmenta proceeding or suit, to represent such Indemnified Party within a attend hearings and trials and assist in securing and giving evidence, and to use reasonable time after notice efforts to obtain the attendance of necessary and proper witnesses, the institution reasonable cost 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 reimbursed by LIXTE. B. Notwithstanding the foregoing or delayed, or (ii) anything in the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything Agreement to the contrary, in the event LIXTE shall have no indemnification obligation or liability for loss or damage resulting from: (i) that failure of INSTITUTION or PRINCIPAL INVESTIGATOR to adhere to the terms and provisions of the PROTOCOL (including agreed amendments thereto), this AGREEMENT, or LIXTE’s written recommendations and instructions relative to the administration and use of any drug substances involved in the STUDY, including, but not limited to, the STUDY DRUG, any comparative drug and any placebo; (ii) failure of INSTITUTION or PRINCIPAL INVESTIGATOR to comply with any INSTITUTION policies and procedures, applicable FDA or other governmental or state law, rules or regulations applicable to the performance of its obligations under this AGREEMENT; (iii) failure of INSTITUTION or PRINCIPAL INVESTIGATOR to conduct the STUDY in a normal, prudent manner; or (iv) negligent act or omission or willful misconduct by PRINCIPAL INVESTIGATOR, INSTITUTION, its trustees, officers, agents or employees related to the performance of services under this AGREEMENT. C. A condition of LIXTE’s indemnity obligation is that, whenever PRINCIPAL INVESTIGATOR and/or INSTITUTION has information from which it may reasonably conclude an incident of bodily injury, death or property damage has occurred, INSTITUTION shall promptly give notice to LIXTE of all pertinent data surrounding such incident. In addition, PRINCIPAL INVESTIGATOR and INSTITUTION shall comply with all of their obligations with regard to adverse event reporting procedures as set forth in this AGREEMENT and the Protocol and any appendix or attachment thereto. In the event claim is made or suit is brought, INSTITUTION and PRINCIPAL INVESTIGATOR shall assist LIXTE, at LIXTE’s expense, and cooperate in the gathering of information with respect to the time, place, and circumstances and in obtaining the names and addresses of the injured parties and available witnesses. PRINCIPAL INVESTIGATOR and INSTITUTION agree to cooperate with and to authorize LIXTE to carry out sole management and defense of such claim or action. Neither PRINCIPAL INVESTIGATOR nor INSTITUTION, its trustees, officers, agents or employees shall compromise or settle any claim or claims for indemnification are asserted action without the prior written approval of LIXTE, and LIXTE shall not compromise or made within such six-year period, all rights to indemnification in respect of settle any such claim or claims shall continue until action against INSTITUTION or PRINCIPAL INVESTIGATOR without the disposition prior written approval of any and all such claims andINSTITUTION.

Appears in 1 contract

Samples: Clinical Trial Research Agreement (Lixte Biotechnology Holdings, Inc.)

Indemnification and Insurance. (a) The articles of incorporation Company agrees that it will indemnify 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 Corporationhold harmless, to the fullest extent permitted under applicable law or by the General Corporation Law of the State of Delaware (the “DGCL”) (and the Company shall also advance expenses as incurred to the fullest extent permitted under the Surviving Corporation's articles of incorporation or by-laws or any indemnification agreement in effect as of the date hereofDGCL, provided that Indemnitee undertakes to indemnify and hold harmless, each present and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES"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), judgments, fines, losses, claims, damagesdamages or liabilities (collectively, liabilities and amounts paid in settlement “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative (collectively, (x) “Action”), arising out of or pertaining related to Indemnitee’s service as a director of the Company or services performed by Indemnitee at the request of the Company, including in connection with the transactions contemplated by this Agreement the Tender Offer or the Merger. (yb) otherwise with respect to any acts or omissions occurring at or The Company shall, prior to or as of the date and time at which the Merger becomes effective under Delaware law (the “Effective Time ("Indemnification Liabilities"Time”), to obtain and fully pay the same extent as provided in premium for the extension of the directors’ and officers’ liability coverage of the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case ’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) from and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of from 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 insurance carrier with a conflict of interest, (ii) comparable or better credit rating as the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party 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 matter. In no event shall other terms that are at least as favorable in 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)aggregate to, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) Company’s existing policies with respect to each any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against Indemnitee by reason of Indemnitee serving a director of the Company or performing services at the request of the Company (including in connection with the transactions contemplated by the Tender Offer or the Merger). If the Company for any reason fails to obtain such matter unless there is“tail” insurance policies as of the Effective Time, under applicable standards the Company shall continue to maintain in effect for a period of professional conductat least six years from and after the Effective Time the D&O Insurance in place as of the date of this Agreement, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims purchase comparable D&O Insurance for indemnification are asserted or made within such six-year period, all rights in each case, with terms, conditions, retentions and limits of liability that are at least as favorable to indemnification Indemnitee as those provided in respect the Company’s existing policies as of the date of this Agreement. If for any such claim reason the Effective Time does not occur, the Company agrees to maintain the D&O Insurance in place as of the date of this Agreement, or claims shall continue until 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 disposition Company’s existing policies as of any and all such claims andthe date of this Agreement.

Appears in 1 contract

Samples: Indemnification Agreement (Hearst Argyle Television Inc)

Indemnification and Insurance. (a) The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation and the by-laws of the Company on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Effective 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 To the fullest extent permitted permissible under applicable law or under Maryland law, the Surviving Corporation's articles of incorporation or by-laws or any indemnification agreement in effect as of the date hereof, to Company shall indemnify and hold harmlessharmless Executive for and against any and all losses, each present 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 former directorall other charges paid or payable in connection with any threatened, officer pending or employee 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 Subsidiaries Affiliates (collectively, the "INDEMNIFIED PARTIES") against any costs or expenses (including reasonable attorneys' fees“Indemnified Losses”), judgmentsand at Executive’s election, fines, losses, claims, damages, liabilities and amounts paid in settlement shall defend Executive in connection with any claimof 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 Indemnified Losses, actionand shall, suitupon Executive’s written request, proceeding or investigationprovide copies of such insurance policies and endorsements and certificates evidencing such coverage. The Company shall advance to Executive Indemnified Losses as, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining when and to the transactions contemplated extent actually incurred or suffered by this Agreement or (y) otherwise Executive. In connection with respect to any acts or omissions occurring at or prior request for such advance of Executive’s Indemnified Losses, Executive shall execute and deliver to the Effective Time ("Indemnification Liabilities")Company an undertaking to repay any amounts paid, advanced, or reimbursed by the Company for such Indemnified Losses to the same extent as provided in that it is ultimately determined, following the Company's articles final disposition of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, actionthat Executive is not entitled to indemnification hereunder. The foregoing indemnification, suit, proceeding or investigation (whether arising before or after the Effective Time) insurance and subject adverse obligations shall not apply to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen brought by the Surviving Corporation Company or its Affiliates to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all enforce its 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andAgreement.

Appears in 1 contract

Samples: Employment Agreement (CorEnergy Infrastructure Trust, Inc.)

Indemnification and Insurance. 8.1 LICENSEE hereby agrees to defend, hold harmless and indemnify FHCRC and its agents, directors, officers and employees (athe “FHCRC INDEMNITEES”) from and against any and all suits, claims, actions, demands, liabilities, expenses and/or losses, including, without limitation, reasonable legal expenses and attorneys’ fees (collectively “LOSSES”) resulting directly or indirectly from a claim with respect to: [***]. The articles foregoing indemnification obligations will not apply in the event and to the extent that such LOSSES arose as a result of incorporation [***]. FHCRC shall promptly notify LICENSEE of any such LOSSES and by-laws of allow LICENSEE to handle and control the Surviving Corporation defense thereof LICENSEE shall contain provisions 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 substantially and confidentiality obligations by FHCRC and LICENSEE hereunder, in no event shall either party be liable to the same effect as those set forth 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 articles of incorporation and the by-laws other party knows or should know of the Company on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period possibility 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 such damages. 8.3 Beginning at the Effective Time were 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 LICENSEE shall use reasonable commercial efforts to have the FHCRC, its directors, officers, employees or employees, contractors, representatives and agents named as additional insureds. Such commercial general liability insurance shall provide: (i) 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 the Company, unless such modification is insurance coverage required after the Effective Time by law. (b) Parent herein shall cause the Surviving Corporation, not be construed to the fullest extent permitted under applicable law or under the Surviving Corporation's articles create a limit of incorporation or by-laws or any indemnification agreement in effect as of the date hereof, to indemnify and hold harmless, each 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 reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise LICENSEE’s liability with respect to any acts or omissions occurring 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 or least [***] prior to the Effective Time ("Indemnification Liabilities")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 the same extent as provided in the Company's articles of incorporation self-insure all or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 part of the Surviving Corporation limits described above provided that such self-insurance program is acceptable to assume and control FHCRC. 8.5 LICENSEE shall maintain such commercial general liability insurance beyond the defense expiration or termination of such litigation, claim or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if this AGREEMENT during: (i) the use period that any LICENSED SUBJECT MATTER developed pursuant to this AGREEMENT is being commercially distributed or sold by LICENSEE or by a sublicensee or agent of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, LICENSEE; and (ii) the defendants in, or targets of, any [***] period immediately after such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims and.

Appears in 1 contract

Samples: Patent and Technology License Agreement (Juno Therapeutics, Inc.)

Indemnification and Insurance. (a) The articles of incorporation From 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 CorporationTime, to the fullest extent permitted under applicable law or under Laws, Parent shall cause the Surviving Corporation's articles of incorporation or by-laws or any indemnification agreement in effect as of the date hereof, Entity to (i) indemnify and hold harmless, harmless each present and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") Indemnified Person against any reasonable costs or expenses (including reasonable attorneys' ’ fees and all other reasonable costs, expenses and obligations (including experts’ fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and binding costs, as well as telecommunications, postage and courier charges) paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to investigate, defend, be a witness in or participate in, any Proceeding 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 the transactions and actions contemplated hereby), including any such Proceeding relating to a claim for indemnification or advancement brought by an Indemnified Person), judgments, fines, losses, claims, damagesdamages or liabilities, liabilities penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) in connection with any claimsuch actual or threatened Proceeding, actionand, suitupon receipt by 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, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out provide advancement of or pertaining to the transactions contemplated by this Agreement or (y) otherwise 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 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) The Surviving Entity, or Parent on behalf of the 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 omissions occurring at or prior to the Effective Time with respect to Indemnified Persons ("Indemnification Liabilities")provided, that the Surviving Entity, or Parent on behalf of the Surviving Entity if Parent so elects, may substitute therefor policies with reputable carriers of at least the same coverage containing terms and conditions that are no less favorable to the same extent Indemnified Persons); provided, however, that in no event shall the Surviving Entity or Parent, as provided in 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 Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on Partnership for such insurance (the date hereof, in each case for a period of six years after the date hereof“Maximum Amount”). In the event of any such claimthat, action, suit, proceeding or investigation (whether arising before or after but for the Effective Time) and subject proviso to the specific terms immediately preceding sentence, the Surviving Entity would be required to expend more than the Maximum Amount, the Surviving Entity, or Parent on behalf of any indemnification contractthe Surviving Entity if Parent had so elected to provide such insurance, shall 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 (i) after but shall be under no obligation to), prior to the Effective Time, purchase a prepaid “tail policy” with respect to acts or omissions occurring or alleged to have occurred prior to the Effective Time that were committed or alleged to have been committed by such Indemnified Persons in their capacity as such; provided, that in no event shall the cost of such policy exceed six times the Maximum Amount. (c) The rights of any Indemnified Person under this Section 6.6 shall be in addition to any other rights such Indemnified Person may have under the Organizational Documents of each of the Partnership, the General Partner, the Surviving Corporation Entity or any Subsidiary of Parent or the Partnership, any indemnification agreements, or the DLLCA or the DRULPA. The provisions of this Section 6.6 shall assume survive the consummation of the transactions contemplated by this Agreement and direct all the defense thereof, including settlement, and are expressly intended to benefit each of the Indemnified Parties shall cooperate in the defense of any such matterPersons and their respective heirs and Representatives. 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 If Parent, the Surviving Corporation to assume and control Entity and/or the defense General Partner, or any of such litigation, claim their respective successors or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if assigns (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel consolidates with a conflict of interest, (ii) the defendants in, or targets of, merges into 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 delayedPerson, or (ii) the terms transfers or conveys all or substantially all of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of their businesses or assets to any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to Person, then, in each 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)case, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conductnecessary, a conflict on any significant issue between proper provision shall be made so that the positions successors and assigns of any two or more Indemnified Parties. Notwithstanding anything to Parent, the contrarySurviving Entity and/or the General Partner shall assume the obligations of Parent, the Surviving Entity and the General Partner set forth in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andthis Section 6.6.

Appears in 1 contract

Samples: Merger Agreement (BP Midstream Partners LP)

Indemnification and Insurance. (a) The articles of incorporation From and by-laws after the First Effective Time, each of the First 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 Surviving Company on the date hereofshall, 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) and Parent shall cause the First Surviving CorporationCorporation and the Surviving Company to, indemnify and hold harmless, to the fullest extent permitted under by 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 and hold harmlessLaw, each present and former director, director and officer or employee of the Company or and any of its Subsidiaries (in each case, when acting in such capacity) (collectively, together with their respective heirs, executors and administrators, the "INDEMNIFIED PARTIES"“Company Indemnified Parties”) against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement damages or Liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) 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 pertaining to matters existing or occurring or actions or omissions taken prior to the transactions contemplated First Effective Time, including (i) the Transactions, and (ii) actions to enforce this Section 6.9 or any other indemnification or advancement right of any 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 this Agreement or applicable Law; provided that the Company Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by a final and nonappealable judicial determination that such Company Indemnified Party is not entitled to indemnification. (yb) otherwise with respect All rights to any indemnification and exculpation from Liabilities for acts or omissions occurring at or prior to the First Effective Time ("Indemnification Liabilities"), and rights to the same extent advancement of expenses relating thereto now existing in favor of any Company Indemnified Party or as provided in the Company's articles of incorporation Company Organizational Documents (or by-laws Company Subsidiary Organizational Documents) or any applicable contract or agreement indemnification agreements in existence as in effect on of the date hereofhereof between such Company Indemnified Party and the Company or any of its Subsidiaries that are set forth on Section 6.9(b) of the Company Disclosure Schedule, shall survive the Transactions and shall continue in each case full force and effect in accordance with their terms, and shall not be amended, repealed or otherwise modified for a period of six (6) years after the date hereof. In First Effective Time in any manner that would adversely affect the event rights thereunder of any such claimCompany Indemnified Parties. (c) Prior to the First Effective Time, actionthe Company shall and, suitif the Company is unable to, proceeding 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 investigation discovery period of at least six (whether arising before or 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 actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director or officer 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 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 First Effective Time, then, for a period of six (6) and subject to the specific terms of any indemnification contract, (i) years after the First Effective Time, the Surviving Corporation Company shall assume cause to be maintained in effect the D&O Insurance in place as of the date hereof with terms, conditions, retentions and direct all limits of liability that are at least as favorable as those provided in the defense thereofCompany’s existing policies as of the date hereof (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, including settlementconditions, 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 or omissions, which occurred or are alleged to have occurred at or before the First Effective Time; provided, however, that the Surviving Company shall not be obligated to make annual premium payments for such insurance to the extent such 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 Indemnified Parties Premium Cap, then the Surviving Company shall cooperate cause to be maintained policies of TABLE OF CONTENTS​​​ insurance which, in the defense Surviving Company’s good faith determination, provide the maximum coverage available at an annual premium equal to the Premium Cap. (d) The rights of any such matter. An each Company Indemnified Party pursuant to this Section 6.9 shall be in addition to, and not in limitation of, any other rights such Company Indemnified Party may have a right to participate in under the Company Organizational Documents (but not controlor Company Subsidiary Organizational Documents) the defense of or under any such matter with its own counsel and at its own expense. Notwithstanding the right of applicable Contracts or Law. (e) If Parent or the Surviving Corporation to assume and control the defense Company or any of such litigation, claim their respective successors or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if assigns (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel consolidate with a conflict of interest, (ii) the defendants in, or targets of, merge into any such litigation, claim other corporation 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 entity and shall not be unreasonably withheld the continuing or delayed, 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 terms successors and assigns of Parent or the Surviving Company shall assume all of the settlement provide that obligations set forth in this Section 6.9. (f) The provisions of this Section 6.9 and Section 2.5(c) shall survive the Indemnified Party shall have no responsibility First Effective Time and are intended to be for the discharge of any settlement amount benefit of, and impose no other obligations or duties on the shall be enforceable by, each Company Indemnified Party and the 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 his or investigation, shall promptly notify Parent her heirs and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andrepresentatives.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Alexion Pharmaceuticals Inc)

Indemnification and Insurance. (a) The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with 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 hereofWarehouse Services, which provisions OHL shall not be amendedindemnify, 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 defend and hold harmlessCLIENT harmless for any damage, each present and former directorcost, officer expense, loss, or employee liability that CLIENT may incur as a result of the Company injury or death to any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") against any costs or expenses person (including reasonable attorneys' fees)the employees of CLIENT, judgments, fines, losses, claims, damages, liabilities OHL and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, its subcontractors) and for damage to property (xincluding the property of OHL and its subcontractors) arising out of or pertaining 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 transactions contemplated third party contracted by this Agreement 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 (yincluding the employees of CLIENT, OHL and its subcontractors) otherwise 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 valid claims CLIENT may have against such third party, as set forth on Exhibit A – Scope of Work, at CLIENT’s cost and expense; further, provided, with respect to all such services, OHL shall indemnify, defend and hold CLIENT, 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 OHL’s breach of or failure to perform any of the covenants or conditions of this Agreement required to be performed or complied with by OHL or any 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 occurring at omissions, the use of any equipment and shipping facilities hereunder or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles breach of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereofthis 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 conditions of this Agreement required to be performed or complied with by CLIENT or any negligent act or omission or intentional act of CLIENT in the performance of any such claimof its obligations under this Agreement. Notwithstanding anything in this Agreement to the contrary, actionneither party in the performance of its obligations under this Agreement shall be liable to the other for any special, suitincidental, proceeding indirect or investigation 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 arising before in contract, tort or after otherwise). Excluding any amounts that may be paid due to insurance coverage, in no event shall OHL’s liability exceed the Effective Time) and subject to the specific terms of any indemnification contractgreater of, (i) after the Effective Time, amounts paid by CLIENT to OHL during the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate in the defense of any such matter. An Indemnified Party shall have a right to participate in preceding twelve (but not control12) 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interestmonth period, (ii) or $500,000. OHL shall provide and keep in effect during the defendants inperiod of this Agreement insurance to cover itself, or targets ofits employees, any and its subcontractors in minimum limits as follows: (a) Xxxxxxx’x Compensation Statutory (b) Comprehensive General Liability Bodily Injury $ 5,000,000 (c) Contractual Liability $ 1,000,000 (d) 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 be in such litigation, claim or proceeding form and carried with such insurance companies reasonably acceptable to CLIENT and CLIENT shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties named 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 certificate holder on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andsaid policies.

Appears in 1 contract

Samples: Logistics Services Agreement (Cambium Learning Group, Inc.)

Indemnification and Insurance. 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 (a) The articles each such present and former officer and/or director determined as of the Effective Time), as provided in Criticare's certificate of incorporation and by-laws or its bylaws or the certificate of incorporation or bylaws of the Surviving Corporation shall contain provisions with respect to indemnification substantially to applicable subsidiary of Criticare, will survive the same Merger and continue in full force and 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 at least 6 years from the Effective Time of the Merger. The Merger Agreement also provides that, from and after the Effective Time in any manner that would adversely affect Time, Opto Circuits shall, and shall cause the rights thereunder surviving corporation to, indemnify each present (as of the Effective Time Time) and former officer and director 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. Criticare (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 and hold harmless, each present and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES"subsidiary thereof) against any all claims, losses, liabilities, damages, liabilities, costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities penalties and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) investigation arising out of or pertaining to the transactions contemplated by this Agreement all acts and omissions, or (y) otherwise with respect to any alleged acts or omissions omissions, occurring at on or prior before the Effective Time, arising out of the fact that such person is or was an officer, director, employee, fiduciary or agent of Criticare (or any subsidiary thereof) to the Effective Time ("Indemnification Liabilities"), fullest extent Criticare is permitted to the same extent as provided in the Company's articles of incorporation or by-laws or any do so under applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereoflaw. In the event of any such claim, action, suitOpto Circuits and the surviving corporation will pay, proceeding or investigation (whether arising before or after as incurred, the Effective Time) reasonable fees and subject expenses of a counsel selected by such indemnified party in advance of the final disposition of any such action to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlementfullest extent permitted under applicable law, and Opto Circuits and the Indemnified Parties shall surviving corporation will cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, The Merger Agreement further provides that Opto Circuits and the Surviving Corporation surviving corporation shall bear maintain, for a period of 6 years after the reasonable feesEffective Time, costs the current directors' 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 officers' liability insurance policies maintained 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 proceedingCriticare. 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) Under the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect Merger Agreement, such insurance coverage is required 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except maintained only to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will that the coverage can be represented maintained at an aggregate cost of not greater than 200 percent of the current annual premium paid 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 Criticare for the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any Criticare's directors' and all such claims andofficers' liability insurance policies.

Appears in 1 contract

Samples: Offer to Purchase (Opto Circuits (India) LTD)

Indemnification and Insurance. Except as provided in Section 8.13 of the QRC Disclosure Letter, the QELP Disclosure Letter or the QMLP Disclosure Letter: (a) The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation and the by-laws of the Company on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of For six years after the Effective Time in any manner that would adversely affect Time, Holdco shall indemnify and hold harmless and advance expenses to, to the rights thereunder as of greatest extent permitted by Applicable Laws, the Effective Time of individuals who at or prior to the Effective Time were directorsofficers and directors of QRC, officers, employees QELP and QMLP and their Subsidiaries and each person who at or agents of the Company, unless such modification is required after prior to the Effective Time by law. (b) Parent shall cause is serving or has served at the Surviving Corporation, to the fullest extent permitted under applicable law or under the Surviving Corporation's articles request of incorporation or by-laws or any indemnification agreement in effect such Party as of the date hereof, to indemnify and hold harmless, each present and former a director, officer officer, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee of the Company benefit plan or any of its Subsidiaries enterprise (individually, an “Indemnified Party” and, collectively, the "INDEMNIFIED PARTIES"“Indemnified Parties”) against any all losses, claims, damages, liabilities, costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities penalties and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) investigation arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any all acts or omissions occurring (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 ("Indemnification Liabilities")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 same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after other two parties all such indemnification agreements prior to the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contractan “Action”), (i) after the Effective TimeHoldco shall cause its Subsidiaries to pay, as incurred, the Surviving Corporation fees and expenses of counsel selected by the Indemnified Party, which counsel shall assume and direct all be reasonably acceptable to Holdco, in advance of the defense thereoffinal disposition of any such Action to the fullest extent permitted by Applicable Laws, including settlementand, if required, upon receipt of any undertaking required by Applicable Laws, and the Indemnified Parties shall (ii) Holdco will, and will cause its Subsidiaries to, cooperate in the defense of any such matter. An Indemnified Party ; provided, however, neither Holdco nor its Subsidiaries 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to such matter. In no event shall the Surviving Corporation be liable for any settlement effected without its prior written consent. Any Indemnified Party wishing consent (which consent shall not be unreasonably withheld or delayed), and provided further that neither Holdco nor its Subsidiaries shall be obligated pursuant to claim indemnification under this Section 6.06(b8.13(a) to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single Action, unless, in the good faith judgment of any of the Indemnified Parties, there is or may be a conflict of interests between two or more of such Indemnified Parties, in which case there may be separate counsel for each 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 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), upon learning 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 Section 8.13(b). (c) The rights of each person identified in Section 8.13(a) shall be in addition to any other rights such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it person may have under the organizational documents of QRC, QELP or QMLP or any of their Subsidiaries, under Applicable Laws or otherwise. The provisions of this Section 6.06(b8.13 shall survive the consummation of the Mergers and expressly are intended to benefit each such person. (d) except In the event Holdco or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity 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 extent such failure materially prejudices such Surviving Corporation). successors and assigns of Holdco shall assume the obligations set forth in this Section 8.13. (e) The Indemnified Parties as a group will be represented by a single law firm parties agree that the rights to indemnification hereunder, including provisions relating to advances of expenses incurred in defense of any action or suit, in the articles or certificate of incorporation and bylaws (plus no more than one local counsel in or similar governing documents, including partnership agreements and limited liability company agreements) and any jurisdiction) indemnification agreement of QRC, QMLP, QELP and their Subsidiaries with respect to each such matter unless there ismatters occurring through the Effective Time, under applicable standards shall survive the Mergers and shall continue in full force and effect for a period of professional conductsix years from the Effective Time; provided, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contraryhowever, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification and advancement of expenses in respect of any Action pending or asserted or claim made within such claim or claims period shall continue until the disposition of any and all such claims andAction or resolution of such claim.

Appears in 1 contract

Samples: Merger Agreement (Quest Resource Corp)

Indemnification and Insurance. (a) The articles 9.1 Subject to Clause 7.3 each party shall notify the other of incorporation any claim, lawsuit or other proceeding related to PRODUCT, PATENT RIGHTS, MATERIAL, INVENTION or INFORMATION. BTI agrees that it will defend, indemnify 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 hold harmless SCS 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 directorsits employees, officers, employees or and agents and each of the Company, unless such modification is required after the Effective Time by law. them (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 and hold harmless, each present and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIESIndemnified Parties") from and against any and all third party claims, causes of action and costs or expenses (including reasonable attorneys' attorney's fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with ) of any claim, action, suit, proceeding nature made or investigation, whether civil, criminal, administrative lawsuits or investigative, (x) other proceedings filed or otherwise instituted against the Indemnified Parties arising out of the design, manufacture, sale or pertaining use of PRODUCT by BTI or its licensees except to the transactions contemplated by extent of the negligence or willful misconduct of an Indemnified Party. BTI will also assume responsibility for all costs and expenses related to such claims and lawsuits for which it is obligated to Indemnify the Indemnified Parties pursuant to this Agreement Paragraph 9.1 including, but not limited to, the payment of all attorney's fees and costs of litigation or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereofother defenses. In the event SCS shall promptly notify BTI of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) claim and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party BTI shall have the right to employ separate counsel and to participate in control the defense of such litigationdefense, claim settlement or proceedingcompromise, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in . 9.2 In the event (i) that any claim or claims for indemnification are asserted or made within such six-year periodinsurance is available at commercially reasonable rates, BTI will, at all rights to indemnification times following first commercial sale of PRODUCT, maintain and keep current in respect of any manufacture and sale of PRODUCT, product liability insurance obtained from a reputable insurer (or an equivalent program of self-insurance) and shall make available to SCS such claim or claims policy for inspection, upon request, by SCS. 9.3 BTI shall continue until use reasonable efforts to manufacture and sell PRODUCT and use reasonable efforts to ensure that its AFFILIATES and SUBLICENSEES manufacture and sell PRODUCT in accordance with the disposition of any and all such claims andregulatory requirements set forth by the country where the particular PRODUCT is to be sold.

Appears in 1 contract

Samples: Research and License Agreement (Biotransplant Inc)

Indemnification and Insurance. (a) The articles of incorporation From 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 directorsTime, officerssubject to applicable law, 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, Crescent Bank agrees to indemnify and hold harmless, harmless each present and former director, director and officer of VantageSouth and each officer or employee of VantageSouth that is serving or has served as a director or officer of another entity expressly at the Company request or any direction of its Subsidiaries VantageSouth (collectivelyeach, the "INDEMNIFIED PARTIES") an “Indemnified Party”), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, amounts paid in settlement, losses, claims, damages, damages or liabilities and amounts paid in settlement incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) 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 pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"including the transactions contemplated by this Agreement), whether asserted or claimed prior to, at or after the Effective Time, as they are from time to time incurred, in each case to the same fullest extent as provided in such person would have been indemnified or have the Company's articles right to advancement of incorporation or by-laws or any applicable contract or agreement expenses pursuant to VantageSouth’s Articles of Incorporation and bylaws as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation this Agreement. (whether arising before or after the Effective Timeb) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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(b5.3(a), upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (Crescent Bank thereof, but the failure to so to notify shall not relieve the Surviving Corporation from Crescent Bank of any liability which it may have under hereunder to such Indemnified Party if such failure does not materially and substantially prejudice Crescent Bank. (c) The Parties will collaborate with respect to 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 policies (or coverage replacing such policy or policies) which exceed 300% of the annual premium payments on VantageSouth’s current policy or policies in effect as of the date of this Section 6.06(bAgreement. (d) except In the event Crescent Bank or any of its successors or assigns (i) consolidates with or merges into any other person or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person or entity, then, and in each such case, to the extent such failure materially prejudices such Surviving Corporation). 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 benefit of, and shall be enforceable by, each 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 Party and his or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andher representatives.

Appears in 1 contract

Samples: Merger Agreement (Crescent Financial Bancshares, Inc.)

Indemnification and Insurance. (a) The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation and the by-laws of the Company on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Effective 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 Corporationshall, to the fullest maximum 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 hereofby Applicable Laws, to indemnify and hold harmlessharmless the LLCP Representative, each present LLCP representative on the Operating Committee, LLCP and former directorLLCP’s employees, officer general and limited partners, principals, agents, attorneys, accountants, representatives and affiliates (collectively, the “LLCP Parties”) from all costs, expenses, liabilities, claims, damages and losses, including attorneys’ fees and the cost of any investigation and preparation incurred in connection therewith (collectively, “Liabilities and Costs”), arising out of or employee 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 its Subsidiaries (collectivelythe 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 "INDEMNIFIED PARTIES"Company shall advance (within ten (10) against Business Days of such request) any costs or expenses (and all expenses, including reasonable any and all attorneys' fees), judgments, fines, losses, claims, damages, liabilities ’ fees and amounts paid in settlement the cost of any investigation and preparation incurred in connection with any claimmatter for which such LLCP Party is or may be entitled to indemnification hereunder; provided, actionhowever, suitthat, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining if and to the transactions contemplated by this Agreement or (y) otherwise with respect extent that a court of competent jurisdiction finally determines that such LLCP Party is not permitted to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party indemnified with respect to such mattermatter under Applicable Laws, the Company shall be entitled to reimbursement of any expenses so advanced. In no event The Company shall the Surviving Corporation be liable for also indemnify each LLCP Party from and against any settlement effected without its prior written consent. Any Indemnified Party wishing and all Liabilities and Costs incurred in connection with any claim or action brought to claim indemnification enforce such LLCP Party’s rights under this Section 6.06(b)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 LLCP Party in such proportion as is appropriate to reflect not only the relative benefits received by the Company, on the one hand, and LLCP, on the other hand, but also the relative fault of each, as well as any other equitable considerations. The Company’s reimbursement, indemnity and contribution obligations shall be 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 learning the same terms, to all LLCP Parties. This Section 1.6 shall survive indefinitely the termination of this Agreement. At any such claimtime that an LLCP Representative is serving on the Board of Directors, actionthe Company shall maintain in force and effect one or more insurance policies providing at least $10,000,000 in insurance coverage for director liability, suit, proceeding or investigation, shall promptly notify Parent including coverage for claims under federal and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation)state securities laws. The Indemnified Parties as a group will be represented by a single law firm (plus no more than Company represents and warrants to LLCP that it currently maintains in effect 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 contraryinsurance policies providing at least $10,000,000 in insurance coverage for director liability, in the event (i) that any claim or including coverage for 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 arising under federal and all such claims andstate securities laws.

Appears in 1 contract

Samples: Investor Rights Agreement (Levine Leichtman Capital Partners Ii Lp)

Indemnification and Insurance. (a) The articles of incorporation From 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 CorporationTime, to the fullest extent permitted under applicable law or under Laws, Parent shall, and shall cause the Surviving Corporation's articles of incorporation or by-laws or any indemnification agreement in effect as of the date hereofEntity to, to (i) indemnify and hold harmless, each present and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") harmless an Indemnified Person against any reasonable costs or expenses (including reasonable attorneys' ’ fees and all other reasonable costs, expenses and obligations (including experts’ fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and binding costs, as well as telecommunications, postage and courier charges) paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to investigate, defend, be a witness in or participate in, any Proceeding, including any Proceeding relating to a claim for indemnification or advancement brought by an Indemnified Person), judgments, fines, losses, claims, damagesdamages or liabilities, liabilities penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) in connection with any claimactual or threatened Proceeding, actionand, suitupon receipt by Parent of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be determined in a final and non-appealable judgment entered by a court of competent jurisdiction that the Indemnified Person is not entitled to be indemnified, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out provide advancement of or pertaining to the transactions contemplated by this Agreement or (y) otherwise 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 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) The 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 omissions occurring at or prior to the Effective Time with respect to Indemnified Persons ("Indemnification Liabilities")provided, that the Surviving Entity may substitute therefor policies with reputable carriers of at least the same coverage containing terms and conditions that are no less favorable to the same extent as provided Indemnified Persons); provided, however, that in no event shall the Company's articles Surviving Entity be required to expend pursuant to this Section 6.6(b) more than an amount per year equal to 300% of incorporation or by-laws or any applicable contract or agreement as in effect on current annual premiums paid by the date hereof, in each case Partnership for a period of six years after such insurance (the date hereof“Maximum Amount”). In the event of any such claimthat, action, suit, proceeding or investigation (whether arising before or after but for the Effective Time) and subject proviso to the specific terms immediately preceding sentence, the Surviving Entity would be required to expend more than the Maximum Amount, the Surviving Entity shall obtain the maximum amount of any indemnification contractsuch 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 (i) after but shall be under no obligation to), prior to the Effective Time, purchase a “tail policy” with respect to acts or omissions occurring or alleged to have occurred prior to the Effective Time that were committed or alleged to have been committed by such Indemnified Persons in their capacity as such; provided, that in no event shall the cost of such policy exceed the Maximum Amount. (c) The rights of any Indemnified Person under this Section 6.6 shall be in addition to any other rights such Indemnified Person may have under the Parent Organizational Documents, the Organizational Documents of each of the Partnership, the General Partner, the Surviving Corporation Entity or any Subsidiary of Parent or the Partnership, any indemnification agreements, or the DLLCA or DRULPA. The provisions of this Section 6.6 shall assume survive the consummation of the transactions contemplated by this Agreement and direct all the defense thereof, including settlement, and are expressly intended to benefit each of the Indemnified Parties shall cooperate in the defense of any such matterPersons and their respective heirs and Representatives. 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 If Parent, the Surviving Corporation to assume and control Entity and/or the defense General Partner, or any of such litigation, claim their respective successors or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if assigns (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel consolidates with a conflict of interest, (ii) the defendants in, or targets of, merges into 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 delayedPerson, or (ii) the terms transfers or conveys all or substantially all of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of their businesses or assets to any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to Person, then, in each 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)case, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conductnecessary, a conflict on any significant issue between proper provision shall be made so that the positions successors and assigns of any two or more Indemnified Parties. Notwithstanding anything to Parent, the contrarySurviving Entity and/or the General Partner shall assume the obligations of Parent, the Surviving Entity and the General Partner set forth in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andthis Section 6.6.

Appears in 1 contract

Samples: Merger Agreement (CNX Midstream Partners LP)

Indemnification and Insurance. (a) The articles of incorporation Merger Agreement provides that from 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 CorporationTime, to the fullest extent permitted under applicable law by law, Parent shall, and shall cause O’Charley’s or under the Surviving Corporation's articles 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 incorporation or bySection 00-laws or any indemnification agreement in effect as 00-000 of the date hereof, to indemnify TBCA and hold harmless, each provides statements and reasonable documentation therefor) the present and former directors and officers of O’Charley’s, any party acting as director, officer officer, trustee, fiduciary, Table of Contents employee or employee agent of another entity or enterprise (including any O’Charley’s benefit plan) at the Company or any request of its Subsidiaries O’Charley’s (collectively, the "INDEMNIFIED PARTIES"each an “Indemnified Party”) from and against any and all actual, documented costs or expenses (including reasonable attorneys' fees, expenses and disbursements), judgments, fines, losses, claims, damages, penalties, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative administrative, regulatory or investigative, (x) arising out of of, relating to or pertaining to the transactions contemplated by this Agreement in connection with any circumstances, developments or (y) otherwise with respect to any matters in existence, or acts or omissions occurring at or alleged to occur prior to or at the Effective Time ("Indemnification Liabilities")Time, to the same extent as provided in the Company's articles of incorporation whether asserted or by-laws or any applicable contract or agreement as in effect on the date hereofclaimed prior to, 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 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 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 its subsidiaries, as the case may be, shall be made by independent special legal counsel selected by the Board of Directors of the Surviving Corporation or a committee thereof in the 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 specific terms 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 indemnification contractof the foregoing, (i) after the Effective Time, in no event shall Parent or the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate be required to (or O’Charley’s be able to) expend an aggregate amount in the defense excess 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 300% of the Surviving Corporation to assume and control annual premium currently payable by O’Charley’s for that policy, it being understood that if the defense of such litigationpremiums payable for that insurance coverage exceed that amount, claim or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, Parent and the Surviving Corporation shall bear be obligated to (or O’Charley’s may only) obtain a policy with 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 greatest coverage available for a cost equal to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andamount.

Appears in 1 contract

Samples: Offer to Purchase (Fidelity National Financial, Inc.)

Indemnification and Insurance. From and after the Initial Closing date: (a) The articles Company shall include as part of incorporation its Certificate of Incorporation and by-laws of the Surviving Corporation shall contain Bylaws provisions with respect to indemnification substantially relating to the same effect as those set forth in the articles indemnification of incorporation all current and the by-laws former directors, officers, employees and agents of the Company on which are no less favorable than the provisions contained in the Company's Certificate of Incorporation and Bylaws as of the date hereof, which . Such provisions shall not be amended, modified repealed or otherwise repealed modified for a period of not less than six years after the Effective Time Initial Closing Date in any manner that would adversely affect the rights thereunder of individuals who as of the Effective Time of individuals who at the Effective Time date hereof were directors, officersoffices, employees or agents of the CompanyCompany 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 after the Effective Time by law. (b) Parent shall cause the Surviving CorporationThe Company shall, 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 hereoflaw, to indemnify and hold harmless, harmless each present and former director, officer or officer, employee and agent of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIESIndemnified Parties") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts act or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereofInitial Closing Date, in each case for a period of not less than six years after the date hereofInitial Closing Date. In the event of any such claim, action, suit, proceeding or investigation (investigation, whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, Initial Closing Date (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and any counsel retained by the Indemnified Parties for any period after the Initial Closing Date shall be reasonably satisfactory to the Company, (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 the defense of any such matter. An Indemnified Party shall have a right to participate in (but not control) ; provided, however, that 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation Company shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 consent (but the failure so to notify which consent 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 Corporationbe unreasonably withheld). 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; and provided, under applicable standards of professional conductfurther, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, that in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such 45 claim or claims shall continue until the disposition of any and all such claims andclaims. 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 positions of any two or more indemnified parties in which case this limitation shall not apply. (c) For the period not less than six years after the Initial Closing Date, the Company shall maintain in effect directors' and officers' liability insurance covering those persons who are currently covered by the Company's directors' and officers' liability insurance policy on terms no less favorable that those now applicable to directors and officers of the Company, provided that in no event shall the Company be required to expend annually more than 150% of the amount that the Company spent for these purposes in the last fiscal year to maintain or procure insurance coverage pursuant hereto; and provided further that if the Company is unable to obtain the insurance called for by this section the Company will obtain as much comparable insurance as is available for such amount per year.

Appears in 1 contract

Samples: Preferred Stock Purchase Agreement (Aames Financial Corp/De)

Indemnification and Insurance. (a) 2.1 The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation and the by-laws of the Company on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Effective 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 Corporationshall, to the fullest maximum 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 hereofby law, to indemnify indemnify, defend and hold harmlessharmless the LLCP Representative, each present LLCP and former directorthe employees, officer or employee partners, principals, agents, attorneys, accountants, representatives and other Affiliates of the Company or any of its Subsidiaries LLCP (including, without limitation, LLCP, Inc.) (collectively, the "INDEMNIFIED PARTIESLLCP Parties") ), from and against any costs or expenses (including all costs, expenses, liabilities, claims, judgments, damages and losses, including, without limitation, all reasonable attorneys' fees)fees and expenses and the cost of any investigation and preparation incurred in connection therewith, judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement incurred in connection with any claimthreatened, action, suit, proceeding pending or investigationcompleted action or proceeding, whether civil, criminal, administrative or investigativeinvestigative (collectively, (x) "Liabilities and Costs"), arising out of or pertaining in any way related to the transactions contemplated 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, including, without limitation, any and all reasonable attorneys' fees and the cost of any investigation and preparation incurred in connection with any matter for which such LLCP Party is or 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 connection with any claim or action brought to enforce such LLCP Party's rights under this Agreement Section 2, or (y) otherwise with respect to any acts under Applicable Law or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation charter or by-laws bylaws now or any applicable contract or agreement as 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 LLCP Party in such proportion as is appropriate to reflect not only the relative benefits received by the Company, on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlementone hand, and LLCP, on the Indemnified Parties 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 cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to any liability the Surviving CorporationCompany may otherwise have at law or under any other agreement, or (iii) including, without limitation, the Surviving Corporation Securities Purchase Agreement, and such obligations shall not have employed counsel satisfactory to such Indemnified Partyextend, in upon the exercise of the Indemnified Party's reasonable judgmentsame terms, to represent such Indemnified Party within a reasonable all LLCP Parties. This Section 2 shall survive indefinitely the termination of this Agreement. 2.3 At any time after notice that an LLCP Representative is serving on the Board and continuing for as long as any claim may be made against the LLCP Representative during any applicable statute of limitations periods, 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 Company shall have no responsibility 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 discharge of any settlement amount and impose no other obligations or duties on Company can obtain such a policy under commercially reasonable terms (including the Indemnified Party and the 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(bpremium amount), upon learning of any provided, that if the Company is unable to obtain at least $10,000,000 in insurance coverage on commercially reasonable terms, it will obtain such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties lesser amount as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andis commercially reasonable.

Appears in 1 contract

Samples: Investor Rights Agreement (Quiznos Corp)

Indemnification and Insurance. (a) The articles of incorporation i). During the Employment Period and by-laws of for so long thereafter as potential liability exists with regard to your activities during 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 Employment Period 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 behalf of the Company, unless such modification is required after its subsidiaries or affiliates, or as a fiduciary of any benefit plan of any of them, the Effective Time by law. (b) Parent Company shall cause the Surviving Corporation, indemnify you to the fullest extent permitted under by applicable law (other than in connection with your gross negligence or under willful misconduct), shall at the Surviving Corporation's articles Company’s election provide you with legal representation or shall advance to you reasonable attorneys’ fees and expenses as incurred, and shall advance to you other reasonable expenses of incorporation response or by-laws 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 insurance policies (if any) the Company shall elect to maintain generally for the benefit of its directors and officers (“Directors and Officers Insurance”) against all costs, charges and expenses incurred or sustained by you in effect as connection with any action, suit or proceeding to which you may be made a party by reason of the date hereof, to indemnify and hold harmless, each present and former your being or having been a director, officer or employee of the Company or any of its Subsidiaries (collectivelysubsidiaries or affiliates or your serving or having served any other enterprise or benefit plan as a director, officer, fiduciary or employee at the "INDEMNIFIED PARTIES") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 request of the Surviving Corporation to assume and control the defense of such litigationCompany (other than any dispute, claim or proceedingcontroversy arising under or relating to this Agreement); provided, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Partyyou shall, in the exercise all cases, be entitled to Directors and Officers Insurance coverage no less favorable than that (if any) provided to any other present director or officer of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andCompany.

Appears in 1 contract

Samples: Employment Agreement (Sabre Corp)

Indemnification and Insurance. (a) The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation and the by-laws of the Company on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Effective 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 CorporationPGIC will, to the fullest maximum 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 hereofby law, to defend, indemnify and hold harmlessharmless the Employee and the Employee’s heirs, each present estate, executors and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") administrators against any costs or expenses (including reasonable attorneys' fees), judgments, finescosts, losses, claims, damagessuits, 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 amounts paid in settlement 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 any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of investigation and defending against any such claimcosts, actionlosses, suitclaims, proceeding suits, proceedings, damages or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to such matterliabilities. In no event shall the Surviving Corporation be liable for any settlement effected without its prior written consentamount of indemnification provided directly by PGIC to the Employee exceed $1,000,000 in the aggregate. Any Indemnified Party wishing indemnification provided to the Employee by third parties shall be excluded from this amount, and shall not count against it. Moreover, PGIC reserves the right to deny any reimbursement or coverage claim indemnification under presented by Employee to PGIC pursuant to this Section 6.06(bparagraph 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 (as reasonably determined by the Board), upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contraryand, in the event such insurance is obtained, the Employee shall be covered under such insurance to the same extent as other senior management employees (i) and directors, with respect to the Employee’s role as a director, as may be applicable); provided, however, that any claim or claims for indemnification are asserted or made within PGIC shall not be required to maintain such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until insurance coverage unless the disposition of any and all such claims andBoard determines that it is obtainable at reasonable cost.

Appears in 1 contract

Samples: Employment Agreement (Mikohn Gaming Corp)

Indemnification and Insurance. (a) The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation and the by-laws of the Company on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Effective 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 Corporationshall, to the fullest maximum 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 hereofby Applicable Laws, to indemnify and hold harmlessharmless the LLCP Representative, each present LLCP and former directorLLCP’s employees, officer general and limited partners, principals, agents, attorneys, accountants, representatives and affiliates (collectively, the “LLCP Parties”) from all costs, expenses, liabilities, claims, damages and losses, including attorneys’ fees and the cost of any investigation and preparation incurred in connection therewith (collectively, “Liabilities and Costs”), arising out of or employee 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 its Subsidiaries (collectivelythe Company, or, while a director or other agent, is or was serving at the "INDEMNIFIED PARTIES") against any costs request of the Company as a director, officer, employee, trustee, agent or expenses (fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, including reasonable attorneys' fees), judgments, fines, losses, claims, damageswithout limitation, liabilities and amounts paid in settlement costs incurred in connection with any claimchallenge of the provisions of this Section 1.5. Upon request by any LLCP Party, actionthe Company shall advance (within ten (10) Business Days of such request) any and all expenses, suitincluding any and all attorneys’ fees and the cost of any investigation and preparation incurred in connection with any matter for which such LLCP Party is or may be entitled to indemnification hereunder; provided, proceeding or investigationhowever, whether civilthat, criminal, administrative or investigative, (x) arising out of or pertaining if and to the transactions contemplated by this Agreement or (y) otherwise with respect extent that a court of competent jurisdiction finally determines that such LLCP Party is not permitted to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party indemnified with respect to such mattermatter under Applicable Laws, the Company shall be entitled to reimbursement of any expenses so advanced. In no event The Company shall the Surviving Corporation be liable for also indemnify each LLCP Party from and against any settlement effected without its prior written consent. Any Indemnified Party wishing and all Liabilities and Costs incurred in connection with any claim or action brought to claim indemnification enforce such LLCP Party’s rights under this Section 6.06(b)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 LLCP Party in such proportion as is appropriate to reflect not only the relative benefits received by the Company, on the one hand, and LLCP, on the other hand, but also the relative fault of each, as well as any other equitable considerations. The Company’s reimbursement, indemnity and contribution obligations shall be 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 learning the same terms, to all LLCP Parties. This Section 1.5 shall survive indefinitely the termination of this Agreement. At any such claimtime that an LLCP Representative is serving on the Board of Directors, actionthe Company shall maintain in force and effect one or more insurance policies providing at least $15,000,000 in insurance coverage for director liability, suit, proceeding or investigation, shall promptly notify Parent including coverage for claims under federal and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation)state securities laws. The Indemnified Parties as a group will be represented by a single law firm (plus no more than Company represents and warrants to LLCP that it currently maintains in effect 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 contraryinsurance policies providing at least $15,000,000 in insurance coverage for director liability, in the event (i) that any claim or including coverage for 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 arising under federal and all such claims andstate securities laws.

Appears in 1 contract

Samples: Investor Rights Agreement (Levine Leichtman Capital Partners IV, L.P.)

Indemnification and Insurance. (a) The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially Except to the same effect as those set forth in extent arising from the articles negligence or willful misconduct of incorporation Landlord or its agents or employees, Tenant agrees to indemnify and the by-laws of the Company on the date hereofsave harmless Landlord and Landlord’s partners, which provisions shall not be amendedmembers, 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 directorsshareholders, officers, employees or directors, managers, employees, 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 and contractors and any indemnification agreement in effect as of the date hereof, to indemnify and hold harmless, each present and former director, officer or employee of the Company or any of its Subsidiaries Holder (collectively, the "INDEMNIFIED PARTIES"“Indemnitees”) from and against any costs or expenses (including reasonable attorneys' fees), judgments, finesall claims, losses, claimscost, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding liability or investigation, whether civil, criminal, administrative or investigative, (x) arising out expenses of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, whatever nature arising: (i) after from any accident, injury or damage whatsoever to any person, or to the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate in the defense property of any such matter. An Indemnified Party shall have a right to participate person, occurring in (but not control) or about 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, Premises; (ii) the defendants infrom any accident, injury or damage whatsoever to any person, 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 Corporationproperty 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 Surviving Corporation 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 thereafter so long as Tenant or any party acting under Tenant is in occupancy of any part of the Premises. This indemnity and hold harmless agreement shall not have employed counsel include indemnity against all losses, costs, damages, expenses and liabilities incurred in or in connection with any such claim or any proceeding brought thereon, and 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 damage 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) and Landlord may recover all costs and expenses thereof from Tenant as additional charges. The provisions of this paragraph shall survive the expiration or 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 Landlord and in form satisfactory to such Indemnified PartyLandlord, (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 other parties reasonably designated by Landlord, and Tenant, as their respective interests may appear, against all claims, demands or 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 exercise of Premises), together with workers compensation insurance in statutorily required amounts covering all Tenant employees working in the Indemnified Party's reasonable judgmentPremises, and (b) “all risk” property insurance on a “replacement cost” basis insuring against loss or damage to represent such Indemnified Party within all Tenant Property and Tenant Work. Tenant may satisfy any insurance requirements by including the Premises in a reasonable time after notice of the institution of such litigationso-called “blanket” or “umbrella” insurance policy, 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 provided that the Indemnified Party shall have no responsibility for amount of coverage allocated to the discharge of any settlement amount and impose no other obligations or duties on Premises pursuant to a “per location” endorsement fulfills the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect requirements set forth herein. All insurance required 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 maintained by Tenant under this Section 6.06(b5.5 shall be provided by insurance companies qualified and licensed to conduct business in the 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), upon learning . Each such policy shall be written on an “occurrence” basis and shall include a waiver of any subrogation clause or endorsement in accordance with Section 8.12. Each such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it policy may have under this Section 6.06(ba 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 insurance carried by Landlord or the 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 change except after at least 30 days’ prior written notice to the Indemnitees and other parties designated by Landlord to the extent that the same is reasonably available in the insurance industry provided, however, that if such failure materially prejudices notice is not provided by any insurance company, then Tenant shall be responsible for providing such Surviving Corporation)notice to Landlord. The Indemnified Parties as a group will A duly executed certificate or certificates for such policies in form satisfactory to Landlord, together with satisfactory evidence of the payment of the premium thereon if requested by Landlord, shall be represented deposited with Landlord and other parties designated by a single law firm Landlord at the beginning of the Term and, upon renewals of such policies, not less than ten (plus no more than one local counsel in any jurisdiction10) 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 days prior to the contraryexpiration of the term of such coverage. Tenant hereby authorizes Landlord, at Landlord’s option, in the event (i) that Tenant fails to perform the repair or restoration work under Section 6.1 and upon reasonable prior notice, to collect, adjust and compromise any claim under such insurance with respect to loss or claims for indemnification are asserted damage to Tenant Work (but not Tenant Property) located in the 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 of this paragraph shall survive the expiration of the Term or made within such six-year period, all rights to indemnification in respect earlier termination of any such claim or claims shall continue until the disposition of any and all such claims andthis Lease.

Appears in 1 contract

Samples: Office Lease (Fusion Pharmaceuticals Inc.)

Indemnification and Insurance. (a) The articles Parent and Merger Sub agree that all rights to advancement of incorporation expenses, indemnification and by-laws exculpation by the Company now existing in favor of the Surviving Corporation shall contain provisions with respect to indemnification substantially each person who is now, or has been at any time prior to the same effect as those set forth in date of this Agreement or who becomes prior to the articles of incorporation and the by-laws 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, which provisions shall not be amended, modified or otherwise repealed for a period of six years after survive the Merger from the Effective Time in any manner that would adversely affect through the rights thereunder as sixth (6th) anniversary of the date on which 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 lawoccurs. (b) From and after the Acceptance Time, each of Parent shall cause and the Surviving CorporationCorporation shall, jointly and severally, to the fullest extent permitted under applicable law or under the Surviving Corporation's articles Law, indemnify, defend and hold harmless (and advance funds in respect of incorporation or by-laws or any indemnification agreement in effect as each of the date hereofforegoing, subject to indemnify and hold harmless, each present and former director, officer the indemnifying or employee advancing party’s receipt of an unsecured undertaking by or on behalf of the Company or any Indemnified Party to repay such funds if it is ultimately determined in a final and non-appealable judgment of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES"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’ 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 investigativeinvestigative (an “Action”), (x) 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 pertaining 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 transactions contemplated Effective Time who are then covered by this Agreement or the directors’ and officers’ liability insurance policy currently maintained by the Company (ythe “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) otherwise with respect years after the Effective Time, but only to any acts the extent related to actions or omissions occurring of such officers and directors at or prior to the Effective Time ("Indemnification Liabilities")including in respect of this Agreement and the Transactions) in their capacities as such, to the same extent as provided in the Company's articles of incorporation whether asserted or by-laws or any applicable contract or agreement as in effect on the date hereofclaimed prior to, 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 at or after the Effective Time) and subject to the specific terms of any indemnification contract; provided, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate that 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to such matter. In no event shall the Surviving Corporation be liable required to expend more than an amount per year equal to 300% of current annual premiums paid by the Company for any settlement effected without 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 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 prior written consent. Any Indemnified Party wishing to claim indemnification full term, Parent shall be relieved from its obligations under this Section 6.06(b6.9(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 or substantially all of its properties and assets to any Person, upon learning then, and in each such case, proper provision shall be made so that the successors and assigns of any such claimParent or the Surviving Corporation, action, suit, proceeding or investigationas the case may be, shall promptly notify assume the obligations set forth in this Section 6.9. (e) The obligations of Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b6.9 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, including reasonable attorneys’ fees, that may be incurred by any 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) except The provisions of this Section 6.9 are intended to be in addition 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 rights otherwise available to the contrarycurrent and former officers and directors of the Company by law, in the event (i) that any claim charter, statute, bylaw 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 andagreement.

Appears in 1 contract

Samples: Merger Agreement (Inspire Pharmaceuticals Inc)

Indemnification and Insurance. (a) The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation and the by-laws of the Company on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Effective 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 Corporationshall, to the fullest maximum 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 hereofby Applicable Laws, to indemnify and hold harmlessharmless the LLCP Representative, each present LLCP representative on the Operating Committee, LLCP and former directorLLCP's employees, officer general and limited partners, principals, agents, attorneys, accountants, representatives and Affiliates (collectively, the "LLCP Parties") from all costs, expenses, liabilities, claims, damages and 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 employee 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 its Subsidiaries (collectivelythe 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 "INDEMNIFIED PARTIES"Company shall advance (within ten (10) against Business Days of such request) any costs or expenses (including reasonable and all expenses, including, without limitation, any and all attorneys' fees), judgments, fines, losses, claims, damages, liabilities fees and amounts paid in settlement the cost of any investigation and preparation incurred in connection with any claimmatter for which such LLCP Party is or may be entitled to indemnification hereunder; provided, actionthat, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining if and to the transactions contemplated by this Agreement or (y) otherwise with respect extent that a court of competent jurisdiction finally determines that such LLCP Party is not permitted to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party indemnified with respect to such mattermatter under Applicable Laws, the Company shall be entitled to reimbursement of any expenses so advanced. In no event The Company shall the Surviving Corporation be liable for also indemnify each LLCP Party from and against any settlement effected without its prior written consent. Any Indemnified Party wishing and all Liabilities and Costs incurred in connection with any claim or action brought to claim indemnification enforce such LLCP Party's rights under this Section 6.06(b)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 LLCP Party in such proportion as is appropriate to reflect not only the relative benefits received by the Company, on the one hand, and LLCP, on the other hand, but also the relative fault of each, as well as any other equitable considerations. The Company's reimbursement, indemnity and contribution obligations shall be 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 learning the same terms, to all LLCP Parties. This Section 1.6 shall survive indefinitely the termination of this Agreement. At any such claimtime that an LLCP Representative is serving on the Board of Directors, actionthe Company shall maintain in force and effect one or more insurance policies providing at least $10,000,000 in insurance coverage for director liability, suit, proceeding or investigation, shall promptly notify Parent including coverage for claims under federal and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation)state securities laws. The Indemnified Parties as a group will be represented by a single law firm (plus no more than Company represents and warrants to LLCP that it currently maintains in effect 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 contraryinsurance policies providing at least $10,000,000 in insurance coverage for director liability, in the event (i) that any claim or including, without limitation, coverage for 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 arising under federal and all such claims andstate securities laws.

Appears in 1 contract

Samples: Investor Rights Agreement (Levine Leichtman Capital Partners Ii Lp)

Indemnification and Insurance. The provisions of this Section 5.12 are intended for the benefit of the parties indemnified herein, and shall be enforceable by such parties. (a) The articles By-Laws of incorporation IVI and bythe By-laws 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 repealed or otherwise repealed modified, for a period of six years after from the Effective Time Date in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who at immediately prior to the Effective Time Date were directors, officers, employees or agents of IVI or Checkmate, as the Companycase may be, unless such modification is required after the Effective Time by lawLaw. (b) Parent shall cause the Surviving CorporationNewco shall, 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 hereofLaw, to indemnify and hold harmless, each present and former director, officer or employee officer, employee, fiduciary and agent of the Company each of IVI and Checkmate or any of its Subsidiaries their subsidiaries (collectively, the "INDEMNIFIED PARTIESIndemnified Parties") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities Liabilities and amounts paid in settlement in connection with any Litigation, claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement any action or (y) otherwise with respect to any acts or omissions omission occurring at or prior to the Effective Time Date ("Indemnification Liabilities")including, to without limitation, the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case transactions contemplated by this Agreement) for a period of six years after the date hereof. In the event of any such claimEffective Date; PROVIDED, actionHOWEVER, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andclaims. 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 positions of any two or more Indemnified Parties. Any counsel retained by the Indemnified Parties shall be reasonably satisfactory to 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 successors or assigns of Newco shall consolidate with or 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 obligations of Section 5.12(b). (d) Newco shall obtain directors' and officers' insurance for the directors and officers of Newco, Checkmate and IVI, including, without limitation, policy limits at least as high as, and risks protected against at least as expansive as, Checkmate's just prior to the date hereof.

Appears in 1 contract

Samples: Combination Agreement (Checkmate Electronics Inc)

Indemnification and Insurance. (a) The articles Unless otherwise prohibited by law, the Corporation may indemnify any trustee or officer, any former trustee or officer, any person who may have served at its request as a trustee or officer of incorporation another corporation, whether for profit or not for profit, and by-laws may, by resolution of the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles Board of incorporation and the by-laws of the Company on the date hereofTrustees, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Effective Time in indemnify 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 and hold harmless, each present and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") against any costs and all expenses and liabilities actually and necessarily incurred by him or expenses (including reasonable attorneys' fees)her, judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement imposed on him or her in connection with any claim, action, suit, or proceeding (whether actual or investigationthreatened, whether civil, criminal, administrative administrative, or investigative, (xincluding appeals) arising out to which he or she may be or is made a party by reason of being or pertaining having been such trustee, officer, or employee; subject to the transactions contemplated by this Agreement limitation, however, that there shall be no indemnification in relation to matters as to which he or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided she shall be adjudged in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suitsuit or proceeding to be guilty of a criminal offense or liable to the Corporation for damages arising out of his or her own gross negligence or misconduct in the performance of a duty to the Corporation. Amounts paid in indemnification of expenses and liabilities may include, proceeding 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 investigation (employee. The Corporation may advance expenses to, or where appropriate may itself, at its expense, undertake the defense of, any trustee, officer, or employee; 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 adoption hereof, whether arising from acts or omissions to act occurring before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceedingadoption hereof. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which indemnification provided by this Article shall not be unreasonably withheld or delayeddeemed exclusive of any other rights to which such trustee, officer, or (ii) the terms employee may be entitled under any statute, Bylaw, agreement, vote of the settlement provide that Board of Trustees, or otherwise and shall not restrict the Indemnified Party shall have no responsibility for power of the discharge Corporation to make any indemnification permitted by law. The Board of Trustees may authorize the purchase of insurance on behalf of any settlement amount and impose no trustee, officer, employee, or other obligations agent against any liability asserted against or duties on 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 Indemnified Party and Corporation would have the settlement discharges all rights power to indemnify the person against Indemnified Party with respect to such matterthat liability under law. In no event case, however, shall the Surviving Corporation be liable indemnify, reimburse, or insure any person for any settlement effected without its prior written consenttaxes imposed on such individual under chapter 42 of the Internal Revenue Code of 1986, as now in effect or as may hereafter be amended (the “Code”). Any Indemnified Party wishing Further, if at any time the Corporation is deemed to claim indemnification be a private foundation within the meaning of § 509 of the Code then, during such time, no payment shall be made under this Section 6.06(bArticle if such payment would constitute an act of self-dealing or a taxable expenditure, as defined in § 4941(d) or § 4945(d), upon learning respectively, of the Code. If any such claim, part of this Article shall be found in any action, suit, or proceeding to be invalid or investigationineffective, shall promptly notify Parent the validity and the Surviving Corporation (but effectiveness of the failure so to notify remaining parts shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andaffected.

Appears in 1 contract

Samples: Charter School Renewal Agreement

Indemnification and Insurance. (a) The articles Without limiting any other rights that any Indemnified Person may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, each of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect which has been provided or made available to indemnification substantially Tellurian prior to the same effect as those set forth in the articles of incorporation and the by-laws of the Company on the date hereof, from the Effective Time and until the six-year anniversary of the Effective Time, Magellan and the Surviving Corporation shall, jointly and severally, indemnify, defend and hold 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 losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid in settlement, of or incurred in connection with any threatened or actual Proceeding to which provisions shall such Indemnified Person is a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer or employee of Magellan or any of its Subsidiaries, a fiduciary under any Magellan Benefit Plan or is or was serving at the 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 be amendeddone by such Person in any such capacity, modified whether pertaining to any act or otherwise repealed for a period of six years omission occurring or existing prior to, at or after the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who and whether asserted or claimed prior to, at the Effective Time were directors, officers, employees or agents of the Company, unless such modification is required after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Merger, other than to the extent such indemnification relates to a breach of this Agreement by law. (b) Parent shall cause the Surviving CorporationMagellan or its Subsidiaries, in each case to the fullest extent permitted under applicable law or under Law (and Tellurian and the Surviving Corporation's articles of incorporation or by-laws or any indemnification agreement Corporation shall, jointly and severally, pay expenses incurred in effect as connection therewith in advance of the date hereof, to indemnify and hold harmless, each 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 reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event final disposition of any such claimProceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, action, suit, proceeding in the event any such Proceeding is brought or investigation threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract), (i) after the Effective TimeIndemnified Persons may retain Magellan’s regularly engaged legal counsel or other counsel satisfactory to them, and Tellurian and the Surviving Corporation shall assume pay all reasonable fees and direct all expenses of such counsel for the defense thereof, including settlementIndemnified Persons as promptly as statements therefor are received, and (ii) Tellurian and the Indemnified Parties Surviving Corporation shall cooperate use its best efforts to assist 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to such matter. In no event shall the Surviving Corporation be liable for any settlement effected without its prior written consent. Any Indemnified Party Person wishing to claim indemnification or advancement of expenses under this Section 6.06(b)5.8, upon learning of any such claim, action, suit, proceeding or investigationProceeding, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation a party from any liability which obligations that it may have under this Section 6.06(b) 5.8 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) party’s position with respect to each such matter unless there is, under applicable standards claims). With respect to any determination of professional conduct, a conflict on whether any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights 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 DGCL, 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. (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 respect substantially the same amount as the director and officer indemnification insurance policy in existence as of any such claim the date of this Agreement. (c) The provisions of this Section 5.8 are intended to be for the benefit of, and shall be enforceable by, the Parties and each Person entitled to indemnification or claims shall continue until the disposition of any insurance coverage or expense advancement pursuant to this Section 5.8, and all such claims andits heirs and representatives.

Appears in 1 contract

Samples: Merger Agreement (Magellan Petroleum Corp /De/)

Indemnification and Insurance. (a) The articles of incorporation and by-laws of the Surviving Corporation 10.1 Amarin 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 and hold harmlessLilly, each present its officers, directors, employees and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") agents harmless from and against any and all liabilities, claims, suits, damages, losses, costs or expenses (including reasonable attorneys' fees)) (collectively "Claims") incurred by or rendered against Lilly, judgmentsits officers, finesdirectors, lossesemployees and agents to the extent such Claims are caused by (or are alleged to have been caused by) Amarin's: (i) negligence, claimsgross negligence, damagesrecklessness or willful misconduct, liabilities (ii) manufacturing, packaging, testing, use, labeling, storage, handling, promotion, distribution and amounts paid in settlement sale of Permax, (iii) breach of any representations, warranty, or covenant under this Agreement, or (iv) actions in connection with any claimaspect of Amarin's marketing activity for Permax(R) (including activity with any third party) (collectively, action"Amarin Activities"). Such indemnification shall not apply to the extent that such Claims are caused by (or are alleged to have been caused by) Lilly's: (i) negligence, suitgross negligence, proceeding recklessness or investigation, whether civil, criminal, administrative or investigativewillful misconduct, (xii) arising out manufacturing, packaging, testing, use, labeling, storage, handling, promotion, distribution and sale of or pertaining to Permax(R) outside the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at Territory or prior to the Effective Time 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, "Indemnification LiabilitiesLilly 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 or rendered against Amarin, its officers, directors, employees and agents to the extent such Claims are caused by Lilly Activities. Such indemnification shall not apply to the extent that such Claims are caused by (or alleged to have been 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 the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject respond to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party Claim. Lilly shall have the right to employ separate counsel and to participate in any defense to the defense 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 consent of such litigationAmarin, claim which consent shall not be unreasonably withheld. 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 its activities as contemplated by this Agreement. Notwithstanding the foregoing, Lilly may choose to self-insure and Amarin may self-insure with Lilly's consent, which will not be unreasonably withheld. 10.6 In the event of a regulatory action or proceedinga private action in connection with any aspect of Amarin's marketing activity for Permax(R) (including activity with any third party), and Amarin will, in addition to the Surviving Corporation shall bear indemnification obligations set forth in Section 10.1, above, do 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 following: (i) act in full cooperating with Lilly to resolve the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, action in an expeditious manner; and (ii) reimburse Lilly for any reasonable internal costs incurred by Lilly in defending, negotiating or settling the defendants in, situation with the appropriate government body 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 proceedingprivate party. The Surviving Corporation Lilly shall not settle any such matter unless (i) the Indemnified Party gives regulatory or private action without Amarin's prior written consent, which shall not to 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 withheld. 10.7 The obligations or duties on the Indemnified Party and the 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 in this Section 6.06(b), upon learning 10 shall survive termination of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andAgreement.

Appears in 1 contract

Samples: License and Supply Agreement (Amarin Corp Plc\uk)

Indemnification and Insurance. (a) The articles 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 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 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 bylaws (or comparable organizational documents) of the Company on and the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Effective Time Company Subsidiaries as in any manner that would adversely affect the rights thereunder effect as of the Effective Time date 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 lawthis Agreement. (b) Parent shall cause Without limiting the Surviving Corporationgenerality of the provisions of Section 6.9(a), during the period commencing at the Effective Time and ending on the sixth anniversary of the Effective Time, to the fullest extent permitted under by applicable law or under Law, Parent, the Surviving Corporation's articles of incorporation or by-laws or any indemnification agreement in effect as of Corporation and its subsidiaries shall (and Parent shall cause the date hereof, to Surviving Corporation and its subsidiaries to) indemnify and hold harmless, harmless each present Indemnified Party from and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") against any costs or costs, fees and expenses (including reasonable attorneys' fees’ fees and investigation expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, actionproceeding, suit, proceeding investigation or investigationinquiry, whether civil, criminal, administrative or investigative, (x) arising to the extent such claim, proceeding, investigation or inquiry arises directly or indirectly out of or pertaining pertains directly or indirectly to (i) any 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 of the transactions contemplated by this Agreement Agreement; provided, however, that if, at any time prior to the sixth anniversary of the Effective Time, any Indemnified Party delivers to Parent a written notice asserting a claim for indemnification under this Section 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 (yincluding 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 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 the contrary set forth in this Section 6.9(b) or elsewhere in this Agreement, neither Parent nor any of its Affiliates shall settle or otherwise compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, proceeding, investigation or 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 Effective Time ("Indemnification Liabilities"Time, covering each person covered by the D&O Insurance, on terms with respect to the coverage and amounts that are equivalent to those of the D&O Insurance; provided, however, that in satisfying their obligations under this Section 6.9(c), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, Parent and the Surviving Corporation shall bear not be obligated to pay annual premiums in excess of two hundred and fifty percent (250%) of the reasonable feesamount 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, costs and expenses the “Maximum Annual Premium”); provided, however, that that if the annual premiums of such separate counsel insurance coverage exceed such amount, Parent 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 be obligated to obtain a policy with the greatest coverage available for a cost not have employed counsel satisfactory exceeding the Maximum Annual Premium. Prior to the Effective Time, notwithstanding anything to the 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 Indemnified Partya “tail” policy prior to the Effective Time, in Parent and 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 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. (d) The obligations of Parent and the Surviving Corporation under this Section 6.9 shall survive the consummation of the Merger and shall not settle 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 matter unless 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). (e) If Parent, the Surviving Corporation or any of its successors or assigns (i) the Indemnified Party gives prior written consent, which consolidates with or merges into any other Person that shall not be unreasonably withheld the continuing or delayedthe surviving corporation or entity of such consolidation or merger, or (ii) the terms transfers or conveys all or substantially all of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of its properties and assets to any settlement amount Person, then, and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to in each 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)case, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation). The Indemnified Parties , as a group will be represented by a single law firm (plus no more than one local counsel the case may be, shall assume the obligations set forth in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andthis Section 6.9.

Appears in 1 contract

Samples: Merger Agreement (Lasercard Corp)

Indemnification and Insurance. (a) The articles Articles of incorporation Incorporation and byBy-laws of the Surviving Corporation shall contain the 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 hereofCompany's Charter Documents, which provisions shall not be amended, modified or otherwise repealed for a period of six years after 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) Parent shall cause the The Surviving CorporationCorporation shall, to the fullest extent permitted under applicable law or under the Surviving Corporation's articles Articles of incorporation Incorporation or byBy-laws or any indemnification agreement in effect as of the date hereoflaws, to indemnify and hold harmless, each present and former director, officer or employee of the Company or any of its Subsidiaries subsidiaries (collectively, the "INDEMNIFIED PARTIES") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities")Time, to the same extent as provided in the Company's articles of incorporation or by-laws 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, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) any counsel retained by the Indemnified Parties for any period after the Effective Time shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation shall assume pay the reasonable fees and direct all expenses of such counsel, promptly after statements therefor are received and (iii) the defense thereof, including settlement, and the Indemnified Parties shall Surviving Corporation will cooperate 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; PROVIDED, claim or proceedingHOWEVER, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 consent (but the failure so to notify which consent 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 Corporationbe unreasonably withheld). 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; and PROVIDED, under applicable standards of professional conductFURTHER, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrarythat, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andclaims. 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 Company for such insurance, but in such case shall purchase as much such coverage as possible for such amount. (e) From and after the Effective Time, Parent shall unconditionally guarantee the timely payment of all funds owing by, and the timely performance of all other obligations of, the Surviving Corporation under this Section 5.06. (f) This Section shall survive the consummation of the Merger at the Effective Time, is intended to benefit the Company, the Surviving Corporation and the Indemnified Parties and the Officer Employees, shall be binding on all successors and assigns of the Surviving Corporation and shall be enforceable by the Indemnified Parties.

Appears in 1 contract

Samples: Merger Agreement (Raychem Corp)

Indemnification and Insurance. (a) The articles By-Laws and Certificate of incorporation and by-laws Incorporation of the Surviving Corporation shall contain the provisions with respect to indemnification substantially to the same effect as those set forth in the articles By-Laws and Certificate of incorporation and the by-laws Incorporation of the Company on the date hereofExpert, which provisions shall not be amended, modified repealed or otherwise repealed modified for a period of six (6) years after 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) Parent shall cause Notwithstanding the foregoing, the Surviving CorporationCorporation shall, to the fullest extent permitted under applicable law or under the Surviving Corporation's articles Certificate of incorporation Incorporation or byBy-laws or any indemnification agreement in effect as of the date hereofLaws, to indemnify and hold harmless, each present and former director, officer or employee of the Company Expert or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIESIndemnified Parties") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities")Time, to the same extent as provided in the CompanyExpert's articles Certificate of incorporation Incorporation or byBy-laws Laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six (6) years after the date hereofEffective Time. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract), (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 assume advance to the Indemnified Party the reasonable fees and direct all expenses of such counsel, and other reasonable costs incurred in the defense thereof, including settlementof such matter, and (iii) the Indemnified Parties shall Surviving Corporation will cooperate 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; provided, claim or proceedinghowever, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to such matter. In no event shall the Surviving Corporation be liable for any settlement effected without its prior written consent. Any Indemnified Party wishing 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 claim indemnification under this Section 6.06(b), upon learning in respect of any such claim, action, suit, proceeding claim or investigation, claims shall promptly notify Parent continue until the disposition of any and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent all such failure materially prejudices such Surviving Corporation)claims. The Indemnified Parties as a group will be represented by a single may retain only one law firm (plus no more than one local counsel to represent them in any jurisdiction) each applicable jurisdiction with respect to each such matter 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. Notwithstanding anything , 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 consummation of the Merger at the Effective Time, is intended to benefit Expert, the Surviving Corporation and the Indemnified Parties, shall be binding on all successors and assigns of the Surviving Corporation and Activision and shall be enforceable by the Indemnified Parties. (d) Activision shall, until the sixth anniversary of the Effective Time, cause to be maintained in effect, to the contraryextent available, the policies of directors' and officers' liability insurance maintained by Expert and the Expert Subsidiaries as of the date hereof (or policies of at least the same coverage and amounts containing terms that are not less advantageous to the insured parties) with respect to claims arising from facts that occurred on or prior to the Effective Time, including without limitation all claims based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving the event (i) that Merger and any claim or claims for indemnification are asserted or made within and all related events. In lieu of the purchase of such insurance by Activision, Activision may purchase a six-year periodextended reporting period endorsement ("Reporting Tail Coverage") under Expert's existing directors' and officers' liability insurance coverage, providing that such Reporting Tail Coverage shall extend the directors' and officers' liability coverage in force as of the date hereof for a period of at least six (6) years from the Effective Time for any claim based upon, arising out of, directly or indirectly resulting from, in consequence of, or any way involving wrongful acts or omissions occurring or prior to the Effective Time, including without limitation all rights to indemnification claims based upon, arising out of, directly or indirectly resulting from, in respect of consequence of, or any such claim way involving the Merger or claims shall continue until the disposition of any and all related events. Expert shall cooperate with Activision in obtaining such claims andinsurance coverage.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Expert Software Inc)

Indemnification and Insurance. (a) The articles Notwithstanding any change in the Company’s certificate of incorporation or bylaws, during the employment period 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 thereafter, the Effective Time 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 any manner that would adversely affect the rights thereunder connection with service as an officer or director of the Effective Time of individuals who Company or service in other capacities at the Effective Time were directors, officers, employees or agents request of the Company, unless such modification is required after the Effective Time by law. (b) Parent shall cause Notwithstanding any change in the Surviving Corporation, to the fullest extent permitted under applicable law or under the Surviving Corporation's articles Company’s certificate of incorporation or by-laws or any indemnification agreement bylaws, during the employment period and for a period of six years thereafter, the Company shall indemnify the Executive and hold him harmless, at a minimum in accordance with the provisions in effect as of the date hereofof this Agreement in the Company’s certificate of incorporation and bylaws, but subject in all cases to indemnify and hold harmlessany limitations under applicable law, each 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 reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities liabilities, costs, expenses (including advancing from time to time his attorney’s fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation), judgments, fines and amounts paid in settlement in connection with any claim, action, suit, proceeding threatened or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such actual claim, action, suit, proceeding or investigation (whether arising before civil, criminal or after administrative, in which the Effective Time) Executive is, or is threatened to be, made a party by reason of being or having been a director of the Company or, in connection with the administration of his official duties as assigned to him by the Board of Directors from time to time, as an officer of the Company or serving or having served at the 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 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 and subject all attorney’s fees and expenses paid to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate Executive 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen advance by the Surviving Corporation to represent such Indemnified Party would present such counsel with Company if it is finally determined by a conflict court 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 competent jurisdiction that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party Executive is not entitled to indemnification hereunder 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 fees and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andexpenses.

Appears in 1 contract

Samples: Employment Agreement (Ezenia Inc)

Indemnification and Insurance. (a) The articles of incorporation From 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 Time, solely to the extent that Partnership or Partnership GP or any manner that applicable Subsidiary thereof would adversely affect the rights thereunder as of be permitted to indemnify an Indemnified Person immediately prior to the Effective Time of individuals who at the Effective Time were directorsTime, officers, employees or agents of the Company, unless such modification is required after the Effective Time by law. (b) Parent shall cause and the Surviving Corporation, Entity jointly and severally agree to (i) indemnify and hold harmless all Indemnified Persons 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 and hold harmless, each present and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") Law against any reasonable costs or expenses (including reasonable attorneys' ’ fees and all other reasonable costs, expenses and obligations (including experts’ fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and binding costs, as well as telecommunications, postage and courier charges) paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to investigate, defend, be a witness in or participate in, any Proceeding, including any Proceeding relating to a claim for indemnification or advancement brought by an Indemnified Person), judgments, fines, losses, claims, damagesdamages or liabilities, liabilities penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) in connection with any claimactual or threatened Proceeding, actionand, suitupon receipt by Parent of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be determined in a final and non-appealable judgment entered by a court of competent jurisdiction that the Indemnified Person is not entitled to be indemnified, proceeding 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 investigationany of their respective successors or assigns, whether civilif applicable, criminalshall, administrative 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 Section 6.7(a) shall not be amended, repealed, terminated or investigativeotherwise 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. (xb) arising out 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 pertaining 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 their capacity as such. (c) The rights of any Indemnified Person under this Section 6.7 shall be in addition to any other rights such Indemnified Person may have under the Organizational Documents of 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 transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six (6) years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject are expressly intended to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise benefit each of the Indemnified Party's reasonable judgmentPersons and their respective heirs and Representatives; provided, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigationhowever, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification or advancement set forth in this Section 6.7 are asserted or made within such six-year six (6)-year period, all rights to indemnification and advancement in respect of any such claim or claims shall continue until the disposition of any and all such claims andclaims. If Parent and/or Partnership GP, or any of their respective successors or assigns (i) consolidates with or merges into any other Person, or (ii) transfers or conveys all or substantially all of their businesses or assets to any other Person, then, in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent and/or Partnership GP shall assume the obligations of Parent and Partnership GP set forth in this Section 6.7.

Appears in 1 contract

Samples: Merger Agreement (PBF Logistics LP)

Indemnification and Insurance. (a) The articles Licensee hereby agrees to indemnify Licensor and undertakes to defend and hold Licensor, its affiliates and their respective officers, directors, agents, and employees, harmless from and against, and/or pay and reimburse such persons for, any and all claims, suits, losses, damages and/or expenses, including but not limited to attorneys' fees and disbursements (collectively, "Losses"), that arise out of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially or relate to the same effect as those set forth in the articles of incorporation and the by-laws of the Company Licensed Trademarks or Licensed Products sold or distributed by it on or after the date hereof, which provisions shall not be amendedexcept to the extent that such Losses are based on, modified arise out of, relate to, or otherwise repealed for a period of six years after the Effective Time in any manner involve claims that would adversely affect the rights thereunder as Licensee's use of the Effective Time of individuals who at the Effective Time were directors, officers, employees Licensed Trademarks infringes a third parties proprietary rights and except for Losses resulting from or agents arising out of the Company, unless such modification is required after the Effective Time by lawgross negligence of Licensor or a breach of Licensor's obligations or warranties specifically contained herein. (b) Parent shall cause the Surviving CorporationLicensor hereby agrees to indemnify Licensee and undertakes to defend and hold Licensee, its affiliates and their respective officers, directors, agents and employees, harmless from and against, and or pay and reimburse such persons for, any Losses that arise out of or relate to Licensed Products sold or distributed prior to the fullest extent permitted under applicable law date of this Agreement or under the Surviving Corporationwhich 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 articles of incorporation or by-laws or any indemnification agreement in effect as use of the date hereof, Licensed Trademarks infringes a third party's proprietary rights or that result from or relate to indemnify and hold harmless, each present and former director, officer the gross negligence of Licensor or employee the breach of the Company Licensor's obligations or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") against any costs warranties specifically contained herein except Losses resulting from or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of the gross negligence of Licensee or pertaining to a breach of Licensee's obligations or warranties contained herein. (c) Licensee and Licensor shall each maintain at its own expense through purchased insurance throughout the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case Term and for a period four (4) years thereafter, comprehensive general liability insurance, including product liability insurance, in a minimum amount of six years Two Million Dollars ($2,000,000) combined single limit for each single occurrence, for bodily injury and property damage. During the term hereof, each party shall have the other 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 the limits of liability stated above without any provision for material deductibles or self-insured retentions, and further provides that the 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. (d) Licensee agrees to be responsible for returns of Licensed Products which occur after the date hereof. In the event of any such claim, action, suit, proceeding or investigation this Agreement except for Interlude Xmas Set (whether arising before or after the Effective Time1995) and subject to the specific terms of any indemnification contract, Hope Xmas Set (i1995) after the Effective Time, the Surviving Corporation for which Licensor shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate in the defense of any such matterbe responsible. 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which Licensee shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility responsible for the discharge returns of any settlement amount and impose no products other obligations or duties on than the Indemnified Party and the 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 Licensed Products (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except only 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, provided for in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andpreceding sentence).

Appears in 1 contract

Samples: Trademark License and Supply Agreement (Stephan Co)

Indemnification and Insurance. (a) The articles Certificate of incorporation Incorporation and byBy-laws Laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially and exculpation similar to the same effect as those set forth in the articles Certificate of incorporation Incorporation and the byBy-laws Laws of the Company on the date hereofTarget, which provisions the Acquiror shall not be amendedand shall cause the Surviving Corporation not to amend, modified repeal or otherwise repealed modify for a period of six (6) years after from the Effective Time in any manner that would materially and 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 CompanyTarget, unless such amendment, repeal or other modification is required after the Effective Time by lawapplicable Law. (b) Parent shall cause From and after the Surviving CorporationEffective Time, to the fullest extent permitted under applicable law or under the Surviving Corporation's articles Acquiror agrees that it will indemnify and hold harmless each present director and officer of incorporation or by-laws or any indemnification agreement Target (when acting in effect such capacity) determined as of the date hereof, to indemnify and hold harmless, each present and former director, officer or employee of the Company or any of its Subsidiaries Effective Time (collectively, the "INDEMNIFIED PARTIESIndemnified Parties") ), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damagesdamages or liabilities (collectively, liabilities and amounts paid in settlement "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, investigation whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement matters existing or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities")Time, whether asserted or claimed prior to, at or after the Effective Time, to the same fullest extent as provided in that Target would have been permitted 45 55 under the Company's articles Connecticut Code and its Certificate of incorporation Incorporation or byBy-laws or any applicable contract or agreement as Laws in effect on the date hereofof this Agreement to indemnify such person (and 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 Indemnified Party wishing to claim indemnification under paragraph (b) of this Section 5.6, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Acquiror thereof in each case for a period writing, but the failure to so notify shall not relieve Acquiror of six years after the date hereofany liability it may have to such Indemnified Party if such failure does not materially prejudice Acquiror. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract), (i) after the Effective Time, Acquiror or the Surviving Corporation shall have the right to assume and direct all the defense thereof, including settlementand Acquiror shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if 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 Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel reasonably satisfactory to Acquiror, and Acquiror or the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties; provided, however, that Acquiror shall be obligated pursuant to this paragraph (c) to pay for only one firm or counsel for all Indemnified Parties, (ii) the Indemnified Parties will cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation Acquiror shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to such matter. In no event shall the Surviving Corporation be liable for any settlement effected without its prior written consent. Any Indemnified Party wishing . (d) For a period of six (6) years after the Effective Time and to claim indemnification 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 amounts of deductibles, if any) that are no less favorable to them in any material respect than the terms now applicable to them under Target's current insurance policies; provided that the Surviving Corporation shall not be required to pay an annual premium for such insurance in excess of 175% of the last annual premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount. (e) If Acquiror or the Surviving Corporation or any of their successors or assigns (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then and in each case, proper provisions shall be made so that the successors and assigns of Acquiror or the Surviving Corporation, as the case may be, shall assume all of the obligations set forth in this Section 6.06(b)5.6; provided, upon learning that the failure to make such provisions shall not affect the validity of any such claimconsolidation, action, suit, proceeding merger or investigation, shall promptly notify Parent and the Surviving Corporation transfer. (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under f) The provisions of this Section 6.06(b) except 5.6 are intended to be for the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will benefit of, and shall be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to enforceable by, each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any their heirs and all such claims andrepresentatives.

Appears in 1 contract

Samples: Merger Agreement (Mci Worldcom Inc)

Indemnification and Insurance. (a) The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation and the by-laws of the Company on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Effective 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 To the fullest extent permitted permissible under applicable law or under Maryland law, the Surviving Corporation's articles of incorporation or by-laws or any indemnification agreement in effect as of the date hereof, to Company shall indemnify and hold harmlessharmless Executive for and against any and all losses, each present 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 former directorall other charges paid or payable in connection with any threatened, officer pending or employee 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 Subsidiaries Affiliates (collectively, the "INDEMNIFIED PARTIES") against any costs or expenses (including reasonable attorneys' fees“Indemnified Losses”), judgmentsand at Executive’s election, fines, losses, claims, damages, liabilities and amounts paid in settlement shall defend Executive in connection with any claimof 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 Indemnified Losses, actionand shall, suitupon Executive’s written request, proceeding or investigationprovide copies of such insurance policies and endorsements and certificates evidencing such coverage. The Company shall advance to Executive Indemnified Losses as, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining when and to the transactions contemplated extent actually incurred or suffered by this Agreement or (y) otherwise Executive. In connection with respect to any acts or omissions occurring at or prior request for such advance of Executive’s Indemnified Losses, Executive shall execute and deliver to the Effective Time ("Indemnification Liabilities")Company an undertaking to repay any amounts paid, advanced, or reimbursed by the Company for such Indemnified Losses to the same extent as provided in that it is ultimately determined, following the Company's articles final disposition of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, actionthat Executive is not entitled to indemnification hereunder. The foregoing indemnification, suit, proceeding or investigation (whether arising before or after the Effective Time) insurance and subject adverse obligations shall not apply to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen brought by the Surviving Corporation Company or its Affiliates to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all enforce its 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andAgreement.

Appears in 1 contract

Samples: Employment Agreement (CorEnergy Infrastructure Trust, Inc.)

Indemnification and Insurance. (a) The articles Parent and Merger Sub agree that all rights to advancement of expenses, indemnification and 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 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 by-laws bylaws of the Surviving Corporation shall contain 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 substantially to the same effect as those indemnification, advancement of expenses and exculpation of each Indemnified Party than are set forth in the articles certificate of incorporation and the by-laws bylaws of the Company as in effect 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 lawthis Agreement. (b) Parent shall cause For six (6) years after the Surviving CorporationEffective Time, to the fullest full extent permitted under applicable law or under Law, Parent and the Surviving Corporation's articles of incorporation or by-laws or any indemnification agreement in effect as of Corporation (the date hereof“Indemnifying Parties”) shall, to indemnify jointly and severally, indemnify, defend and hold harmless, harmless each present and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") Indemnified Party against any costs or expenses (including reasonable attorneys' fees), judgments, fines, all losses, claims, damages, liabilities and amounts paid liabilities, fees, expenses, judgments or fines arising in settlement whole or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising part out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts actions or omissions in their capacity as such occurring at or prior to the Effective Time ("Indemnification Liabilities"including in respect of this Agreement and the Transactions), to the same extent as provided in the Company's articles of incorporation whether asserted or by-laws or any applicable contract or agreement as in effect on the date hereofclaimed prior to, 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 at or after the Effective Time, and shall advance each Indemnified Party within twenty (20) and Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor for any 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 specific terms 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 indemnification contractIndemnified 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 prior to the Effective Time who are then covered by the directors’ and officers’ liability insurance policy currently maintained by the Company (ia 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 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 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 assume procure and direct all maintain for such six-year (6) period as much coverage as is available for the defense thereof, including settlement, and the Indemnified Parties shall cooperate in the defense of any such matterMaximum Amount. 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 proceeding, such Indemnified Party Parent shall have the right to employ separate counsel 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 participate in such former directors or officers than the defense of such litigation, claim or proceedingD&O Insurance, and such “tail” policy shall satisfy the Surviving Corporation shall bear provisions of this Section 6.9(c). (d) Notwithstanding any other provision of this Section 6.9, Parent, Merger Sub, the reasonable fees, costs Company 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 their Affiliates shall have no responsibility obligation to indemnify, defend or hold harmless or advance expenses and exculpate any person for matters for which a director or officer of the discharge of any settlement amount and impose no other obligations or duties on Company has agreed to indemnify the Indemnified Party and the 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)Company, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except including pursuant to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any Employment Separation and all such claims andGeneral Release Agreement.

Appears in 1 contract

Samples: Merger Agreement (KI NutriCare, Inc.)

Indemnification and Insurance. (a) The articles Parent and Merger Sub agree that all rights to advancement of incorporation expenses, indemnification and by-laws exculpation by the Company now existing in favor of the Surviving Corporation shall contain provisions with respect to indemnification substantially each Person who is now, or has been at any time prior to the same effect as those set forth in date of this Agreement or who becomes prior to the articles of incorporation and the by-laws 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 hereofof 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 provisions shall not be amended, modified or otherwise repealed for a period of six years the Effective Time occurs. From and after the Effective Time in any manner that would adversely affect until the rights thereunder as sixth anniversary of the Effective Time of individuals who at the Effective Time were directorsTime, officers, employees or agents of the Company, unless such modification is required after the Effective Time by law. (b) Parent shall cause the Surviving CorporationCorporation to indemnify, 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 defend and hold harmless, each present and former director, officer or employee of the Company or any of its Subsidiaries (collectivelyadvance expenses to, the "INDEMNIFIED PARTIES"Indemnified Parties with respect to (x) against 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 documented attorneys' fees), judgments, fines, losses, claims, damages, damages and liabilities and amounts paid incurred by such Indemnified Party in settlement his or her capacity as a current or former officer or director of the Company in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising to the extent such claim, action, suit, proceeding or investigation arises out of or pertaining pertains to the transactions contemplated by Merger, this Agreement or any of the other Transactions, in either case, to the fullest extent permitted by the Company Charter Documents, any other indemnification agreements identified on Section 6.7(a) of the Company Disclosure Letter in effect on the date of this Agreement, or applicable Law. From and 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. (yb) otherwise with respect Parent shall either (i) cause to any 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 omissions occurring at or prior to the Effective Time with respect to those Persons who are covered by the D&O Insurance as of the Effective Time, or ("Indemnification Liabilities")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 same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case Effective Time for a period of six years after the date hereof. In Effective Time, with respect to those Persons who are covered by the event D&O Insurance as of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective TimeTime 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 subject 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 specific terms Persons currently covered by the D&O Insurance; (B) Parent shall not be required to pay any annual 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, the “Maximum Amount”); and (C) if the premium for the D&O Insurance or any indemnification contractsubstitutes 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) after consolidates with or merges into any other Person and shall not be the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 continuing or surviving corporation or entity of such litigation, claim consolidation or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim merger; or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) 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 defendants in, successors and assigns of Parent 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) as the Surviving Corporation case may be, shall not have employed counsel satisfactory to such Indemnified Party, assume the obligations set forth in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 6.7. (d) The obligations of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b6.7 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 6.7 applies without the written consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.7 applies shall be third party beneficiaries of this Section 6.7, each of whom may enforce the provisions of this Section 6.7). (e) except The provisions of this Section 6.7 are intended to be in addition 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 rights otherwise available to the contrarycurrent and former officers and directors of the Company by Law, in the event (i) that any claim charter, statute, bylaw 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 andagreement.

Appears in 1 contract

Samples: Merger Agreement (CoLucid Pharmaceuticals, Inc.)

Indemnification and Insurance. 13.1 POZEN shall defend, indemnify and hold harmless DESITIN, its Affiliates and its and their officers, directors, employees, agents and contractors (“DESITIN Parties”) from and against any and all claims, actions, demands, losses, damages, costs and reasonable expenses (including reasonable legal and expert fees) made or brought by Third Parties (“Claims”) arising from or in connection with: (a) The articles of incorporation and by-laws the breach 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 hereofwarranties given by POZEN under this Agreement, 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.or (b) Parent shall cause the Surviving Corporationnegligence of POZEN Parties (as defined below) in the research, to the fullest extent permitted under applicable law development, marketing, distribution, sale or under the Surviving Corporation's articles of incorporation or by-laws or any indemnification agreement in effect as use of the date hereofProduct before the Effective Date both in or outside the Territory, to or (c) the negligence of POZEN Parties in the research, development, marketing, distribution, sale or use of the Product following the Effective Date outside the Territory, provided that, in each case, such Claims do not arise from the negligence or willful default of the DESITIN Parties. 13.2 DESITIN shall defend, indemnify and hold harmlessharmless POZEN, each present its Affiliates and former directorits and their officers, officer directors, employees, agents and contractors (the “POZEN Parties”) from and against any and all Claims arising from or employee in connection with: (a) the development, marketing, distribution, sale or use of the Company 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 of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") against any costs claims arising from or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claimthe infringement of Third Party Rights, actionparticularly patents, suit, proceeding caused by the manufacture or investigation, whether civil, criminal, administrative or investigative, (x) arising out composition of or pertaining to the transactions contemplated by Product in accordance with the terms of this Agreement or (y) otherwise Agreement. 13.3 Each Party shall promptly provide the other Party with copies of all papers and official documents received in respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) Claims and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate as reasonably requested by the other Party in the defense of any 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 matterClaim, including, without limitation, the selection of defense counsel; provided, however, that the 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 the indemnified Party under this Clause. An Indemnified indemnified Party shall have a right will also be entitled to participate in (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 proceeding, such Indemnified Party shall have the right Claim and to employ separate counsel and to participate in of its choice for such purpose; provided, however, that such employment will be at the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter indemnitee’s own expense unless (i) the Indemnified employment thereof has been specifically authorized by the indemnifying Party gives prior written consent, which shall not be unreasonably withheld or delayedin writing, or (ii) the terms of indemnifying Party has failed to assume the settlement provide that defense and employ counsel in accordance with this Clause 13.3, in which case the Indemnified indemnified Party will control the defense. 13.4 Each Party shall have no responsibility for maintain, at its own cost, comprehensive product liability insurance and general commercial liability insurance adequate to cover their respective obligations under this Agreement in such amount as the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party 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 matterinsurance policy for not less than *** years following the expiry or termination of this Agreement. In no event shall A certificate of insurance and any other documentation necessary to prove compliance with this provision will be provided to the Surviving Corporation be liable for any settlement effected without its prior written consent. Any Indemnified other Party wishing to claim indemnification under this Section 6.06(bupon request. 13.5 TO THE FULL EXTENT PERMITTED BY LAW, APART FROM THE FOREGOING WARRANTIES AND INDEMNITY OR SUCH WARRANTIES OR INDEMNITY AS MAY BE CONTAINED WITHIN THE MANUFACTURING AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND LIABILITIES, WHETHER EXPRESS OR IMPLIED, ARISING FROM CONTRACT OR TORT (EXCEPT FRAUD), upon learning of any such claimIMPOSED BY STATUTE OR OTHERWISE, actionRELATING TO THE PRODUCTS AND/OR ANY LICENSED TECHNOLOGY, suitINCLUDING ANY WARRANTIES AS TO MERCHANTABILITY, proceeding or investigationFITNESS FOR PURPOSE, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there isCORRESPONDENCE WITH DESCRIPTION, under applicable standards of professional conductOR NON-INFRINGEMENT. 13.6 IN NO EVENT WILL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contraryINCIDENTAL OR SPECIAL DAMAGES, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year periodINCLUDING ANY LOSS OF PROFITS, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andEVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Appears in 1 contract

Samples: License and Development Agreement (Pozen Inc /Nc)

Indemnification and Insurance. (a) The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation and the by-laws of the Company on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Effective 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 Purchaser will honor the Surviving Corporation's articles performance of incorporation or by-laws or any indemnification agreement in effect as of the date hereofall contracts, to indemnify agreements and hold harmless, each present and former director, officer or employee commitments of the Company or any of its Subsidiaries (collectivelysubsidiaries, including those reflected in their Articles of Incorporation and Bylaws, which indemnify any officer or director of the "INDEMNIFIED PARTIES") against Company or any costs or expenses (including reasonable attorneys' feesof its subsidiaries, as disclosed on Schedule 6.06(b), judgmentsagainst claims made against them arising from their service, finesbut only to the extent that such contract, lossesagreement or commitment was entered into before the date of this Agreement and is listed on Schedule 6.06. (b) Any indemnified party wishing to claim indemnification under this Section, claims, damages, liabilities and amounts paid in settlement in connection with upon learning of any claim, such action, suit, claim, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to shall promptly notify the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) Purchaser and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, thereof and the Indemnified Parties Purchaser and the Surviving Corporation shall cooperate in the defense of any such matter. An Indemnified Party shall have a right ; provided, however, that any failure so to participate in (but not control) notify the defense Purchaser and the Surviving Corporation of any obligation to indemnify such matter with its own counsel indemnified party or of any 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 at its own expense. Notwithstanding the right of the Surviving Corporation to assume and control the defense of such litigation, claim or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, defend any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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, claim, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties indemnified parties as a group will be represented by a single law firm (plus no more than shall retain only one local counsel in any jurisdiction) each jurisdiction to represent them with respect to each such matter unless any single action; provided, however, in the event that 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 indemnified parties, the Purchaser and such indemnified parties may retain, at the expense of the Purchaser and the Surviving Corporation, as the case may be, such number of additional counsel as are necessary to eliminate all conflicts of the contrary, in type referred to above. (c) In the event (i) that any claim is made against directors, officers or claims employees of the Company that is covered or potentially covered by insurance, the Surviving Corporation and the Purchaser shall do nothing that would in their reasonable discretion forfeit, jeopardize, restrict or limit the insurance coverage available for indemnification are asserted that claim until the final disposition of that claim. (d) The Surviving Corporation and the Purchaser agree that until six years from the date hereof, the Articles and the Bylaws of the Surviving Corporation will not be amended to reduce or made within such six-year period, all limit the rights to indemnification indemnity currently afforded thereunder. To the knowledge of the Company, there are no pending or threatened claims which are reasonably anticipated to result in respect of any such a claim or claims shall continue until the disposition of any and all such claims andfor indemnification.

Appears in 1 contract

Samples: Merger Agreement (PMC International Inc)

Indemnification and Insurance. 10.1 Subject to the conditions and provisions of this section, each Party (the “Indemnifying Party”) hereby agrees to indemnify, defend, and hold harmless the other Party and its officers, directors, shareholders, employees, and agents (the “Indemnified Parties”) from and against any and all losses, damages, claims, liabilities, and expenses (including without limitation attorneys’ fees and costs), asserted against, resulting to, imposed upon or incurred by any of the Indemnified Parties, directly or indirectly, by reason of or resulting from: (a) The articles any misrepresentation or breach of incorporation and by-laws any representation or warranty, or noncompliance with any conditions or other agreements, given or made by the Indemnifying Party in this Restated Agreement or in any document furnished by or on behalf 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 Indemnifying Party under this Restated Agreement; 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 any negligent or intentional act or omission by the Indemnifying Party or its officer, employee, or agent. MacroMed shall cause also indemnify 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 and hold harmless, each 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 reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise Genex Indemnified Parties with respect to any acts or omissions occurring at or prior product liability claim relating to the Effective Time ("Indemnification Liabilities"), Product. 10.2 One or more of the Indemnified Parties shall give written notice to the same extent as provided in Indemnifying Party promptly upon receipt by any of the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event Indemnified Parties of any such claim, actionloss, suitdamage, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlementliability, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party expense with respect to 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 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 matter. In no event shall insurance to Genex from time to time, as requested in writing by Genex. 10.5 The rights, covenants, and obligations of the Surviving Corporation be liable for any settlement effected without its prior written consent. Any Indemnified Party wishing to claim indemnification Parties under this Section 6.06(b), upon learning 10 will survive the termination or cancellation of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andAgreement.

Appears in 1 contract

Samples: License and Supply Agreement (Protherics PLC)

Indemnification and Insurance. (a) The articles of incorporation and by-laws of the Surviving Corporation Parent 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 hereofnot, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Effective Time Closing, take any action to unilaterally alter or impair any exculpatory or indemnification provisions now existing in the Certificate of Incorporation or Bylaws of the Company or any manner that would adversely other 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 Company at any time prior to the Closing, except for any changes which may be required to conform with changes in applicable law and any changes which do not affect the rights thereunder as application of such provisions to acts or omissions of such individuals prior to 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 lawClosing. (b) Subject to applicable laws, from and after the Closing, Parent shall agrees that it will 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, Corporation to indemnify and hold harmless, harmless each present and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") Indemnified Executive against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and or amounts paid in settlement incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement matters existing or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities")Closing based directly or indirectly on, or arising directly or indirectly out of, the fact that such Indemnified Executive is an officer or director of the Company, whether asserted or claimed prior to, at or after the Closing, to the same fullest extent permitted under Delaware law (and 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). (c) The Company will use Reasonable Best Efforts to maintain in full force and effect through the Company's articles of incorporation or by-laws or any Closing Date all material insurance policies applicable contract or agreement as to the Company and its Subsidiaries and their respective properties and assets in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) If and subject to the specific terms of any indemnification contract, (i) after the Effective Timeas requested by Parent, the Surviving Corporation shall assume and direct all Company will use its Reasonable Best Efforts to cause the defense thereof, including settlement, and Company’s insurers to waive any provisions in such insurance policies that would allow the Indemnified Parties shall cooperate in the defense of any such matter. An Indemnified Party shall have a right insurer to participate in (but not control) the defense of any such matter with its own counsel and at its own expense. Notwithstanding the right terminate or adversely modify coverage upon consummation of the Surviving Corporation to assume and control the defense of such litigation, claim or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andMerger.

Appears in 1 contract

Samples: Merger Agreement (Emeritus Corp\wa\)

Indemnification and Insurance. (a) The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation and the by-laws of the Company on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Effective 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 22.1 Distributor does hereby indemnify and hold harmlessharmless ICI, each present its affiliates and former directorthe Rights Holder and its affiliates from and against any and all losses, officer liability, damages and expenses (including reasonable attorneys fees and expenses) which it may incur or employee be obligated to pay as a result of the Company or in defending any action, claim or proceeding against any of them, for or by reason of any acts or omissions committed by Distributor or any of its Subsidiaries (collectivelyservants, the "INDEMNIFIED PARTIES") against any costs agents or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement employees in connection with Distributor's performance of this Agreement. Distributor shall immediately notify ICI of any claim, action, suit, proceeding claim or investigation, whether civil, criminal, administrative 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 investigative, (x) arising out earlier termination of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereofAgreement. In the event of any such claimthat a judgment, actionlevy, suit, proceeding attachment or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Timeother seizure is entered against ICI, the Surviving Corporation Rights Holder or any of their respective affiliates arising from any claim as to which indemnification is provided hereunder, Distributor shall assume promptly post the necessary bond to prevent execution against any property of ICI, the Rights Holder or any of their affiliates. 22.2 Distributor shall procure and direct all the defense thereofmaintain in full force and effect, including settlement, and the Indemnified Parties shall cooperate 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 sole cost and expense. Notwithstanding the right of the Surviving Corporation to assume and control the defense of such litigation, claim or proceedingat all times during which products are being sold, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party product liability insurance policy with respect to such matterthe Products with a limit of liability of not less than $1,000,000. In no event Such insurance policy shall the Surviving Corporation be liable include ICI as an additional insured thereunder and shall provide for any settlement effected without its at least thirty (30) days prior written consentnotice to ICI of the cancellation or substantial modification thereof. Any Indemnified Party wishing Such insurance may be obtained by Distributor in conjunction with a policy of products liability insurance which covers products other than the Products. Distributor will deliver a certificate of such insurance to claim 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 Section 6.06(b)Agreement, upon learning of any such claimICI shall procure and maintain in full force and effect, actionat its sole cost and expense, suitat all times during which Products are being sold, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any a product 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) insurance policy with respect to each such matter unless there is, potential liability under applicable standards this Agreement with a limit of professional conduct, a conflict on any significant issue between the positions liability of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andnot less than $1,000,000.

Appears in 1 contract

Samples: Distribution Agreement (Ic Isaacs & Co Inc)

Indemnification and Insurance. (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 NSC's directors and officers. The articles Certificate of incorporation Incorporation and by-laws Bylaws of the Surviving Corporation shall will contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles and elimination of incorporation and the by-laws of the Company on the date hereofliability for monetary damages, which provisions shall will not be amended, modified repealed or otherwise repealed modified for a period of six years after one year from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who who, at the Effective Time Time, were directors, officers, employees or agents of the CompanyNSC, unless such modification is required after the Effective Time by law. (b) Parent shall cause After the Effective Time the Surviving CorporationCorporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's articles Certificate of incorporation Incorporation or by-laws or any indemnification agreement in effect as of the date hereofBylaws, to indemnify and hold harmless, each present and former director, director or officer or employee of the Company or any of its Subsidiaries NSC (collectively, the "INDEMNIFIED PARTIESIndemnified Parties") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) to the extent arising out of or pertaining to the transactions contemplated by this Agreement any action or (y) otherwise with respect to any acts omission in his or omissions occurring at her capacity as a director, officer, employee or agent of NSC occurring. prior to the Effective Time ("Indemnification Liabilities"), including without limitation actions or omissions relating to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case Merger) for a period of six years one year after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation shall assume will pay the reasonable fees and direct all expenses of such counsel, promptly after statements therefor are received and (iii) the defense thereof, including settlement, and the Indemnified Parties shall Surviving Corporation will cooperate 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 ; provided, however, that the Surviving Corporation to assume and control the defense of such litigation, claim or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall will not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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); and provided, upon learning of any such claimfurther, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrarythat, in the event (i) that any claim or claims for indemnification are asserted or made within such six-one- year period, all rights to indemnification in respect of any such claim .claim or claims shall will continue until the disposition of any and all such claims andclaims. (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 cost of which shall be paid by Azurel. (d) This Section 5.7 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit NSC, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving Corporation.

Appears in 1 contract

Samples: Merger Agreement (Proteonomix, Inc.)

Indemnification and Insurance. A. Except to the extent attributable to the negligence of Landlord or its agents, Tenant shall indemnify and save harmless Landlord and its agents against and from (i) any and all claims (a) The articles of incorporation and by-laws arising from (x) the conduct or management of the Surviving Corporation shall contain provisions with respect to indemnification substantially demised premises or of any business therein, or (y) any work or thing whatsoever done, or any condition created in or about the demised premises during the term hereof or during the period of time, if any, prior to the same effect as those set forth in Commencement Date that Tenant may have been given access to the articles of incorporation and the by-laws of the Company on the date hereofdemised premises, 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 arising from any negligent or under the Surviving Corporation's articles otherwise wrongful act or omission of incorporation or by-laws or any indemnification agreement in effect as of the date hereof, to indemnify and hold harmless, each present and former director, officer or employee of the Company Tenant or any of its Subsidiaries subtenants or licensees or its or their employees, agents visitors, invitees or contractors or subcontractors of any tier, and (collectivelyii) all costs, the "INDEMNIFIED PARTIES") against any costs expenses and liabilities incurred in or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in 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 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 such claim. B. Tenant shall secure and keep in full force and effect throughout the term hereof, actionat Tenant's sole cost and expense (i) Comprehensive General Liability Insurance, suitwritten on an occurrence basis, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) 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 pertaining in connection with the demised premises or 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 transactions contemplated by extent of Tenant's liability under this Agreement or (y) otherwise with respect lease. In addition, prior to any acts or omissions occurring at or prior to entry upon the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles of incorporation or by-laws demised premises by Tenant or any applicable contract of Tenant's employees, agents or agreement as contractors, Tenant shall deliver or cause to be delivered to Landlord certificates evidencing that all insurance required hereunder is in effect on the date hereof, in each case for a period of six years after the date hereoffull force and effect. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party Tenant shall have the right to employ separate counsel 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 participate 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 defense names and for the benefit of such litigationLandlord (and each member thereof in the event Landlord is a partnership or joint venture), claim or proceedingLandlord'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 Surviving Corporation negligence or tortious acts of Tenant, its servants, agents, employees and contractors. E. Each party shall bear include in each of its insurance policies covering loss, damage or destruction by fire or other casualty (insuring the reasonable feesbuilding and Landlord's property therein and the rental value thereof, costs in the case of Landlord, and expenses 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 separate counsel and shall pay such feeswaiver should be unobtainable or unenforceable, 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 an express agreement that 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 policy shall not be unreasonably withheld or delayedinvalidated if the insured waives before the casualty the right of recovery against any party responsible for a casualty covered by such policies, or (ii) any other form of permission for the terms release of the settlement provide 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 shall pay the insurer's additional charge therefor, such waiver, agreement or 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 Indemnified Party shall have no responsibility foregoing, any failure by Tenant as an additional insured promptly to endorse to the order of Landlord any instrument for the discharge payment of any settlement amount and impose no money under a policy of which Landlord is the owner or original or primary insured shall be a default under this lease. F. Each party hereby releases the other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party party with respect to such matter. In no event shall the Surviving Corporation be liable any claim (including a claim 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability negligence) which it may might otherwise have under this Section 6.06(bagainst the other party for loss, damage or destruction with respect to its property (including rental value or business interruption) except occurring during the term hereof and with respect and to the extent to which it is insured under a policy or 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 liable to the first party with respect thereto or is 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 failure materially prejudices such Surviving Corporation)loss, damage or destruction shall be offset against the second party's liability to the first party therefor, or shall be made available to the 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 agents of each party and its and their employees. The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel releases provided for in any jurisdiction) with respect Paragraph F above shall likewise extend to each such matter unless there isagents and employees, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything if and to the contrary, extent that such waiver or permission is effective as to them. Nothing contained in Paragraphs E or F above shall be deemed to impose upon either party any duty to procure or maintain any of the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights kinds of insurance referred to indemnification therein except as otherwise required in respect of any such claim or claims shall continue until the disposition of any and all such claims andthis Article. If either party

Appears in 1 contract

Samples: Lease Agreement (Martha Stewart Living Omnimedia Inc)

Indemnification and Insurance. (a) The articles Section 7.1 After the Closing Date, the certificate of incorporation and by-laws bylaws of the Surviving Corporation Company and each of its Subsidiaries shall contain provisions with respect to indemnification substantially to the same effect as no less favorable than those set forth in the articles certificate of incorporation and the by-laws 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 Effective Time Closing Date in any manner that would adversely affect the rights thereunder as of the Effective Time Closing Date of individuals who at the Effective Time Closing Date were directors, officers, employees or agents of the CompanyCompany or such Subsidiary, unless such modification is required after the Effective Time Closing Date by law. (b) Parent Section 7.2 The Company shall, and the Investor Group, to the extent of the liability limit hereinafter provided, shall cause the Surviving CorporationCompany, to the fullest extent permitted under applicable law or under the Surviving CorporationCompany's articles or such Subsidiary's certificate of incorporation or by-laws bylaws or any indemnification agreement in effect as of the date hereof, to indemnify and hold harmless, each present and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIESIndemnified Parties") against any costs or expenses (including reasonable attorneys' feesfees and disbursements), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, or otherwise (xa) arising out of or pertaining to the transactions contemplated by this Agreement (but excluding any matter to the extent involving an Indemnified Party in a capacity other than as a director, officer, employee or agent of the Company) or (yb) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities")Closing Date, to the same extent as provided in the Company's articles or such Subsidiary's certificate of incorporation or by-laws bylaws or any applicable contract or agreement as in effect on the date hereofClosing 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 Effective TimeClosing Date) and subject to the specific terms of any indemnification contractcontract (except as provided in the joint defense agreement contemplated by Section 2.3(e) insofar as it may affect the procedure for the determination of entitlement to indemnification), (ia) after the Effective TimeClosing Date, the Surviving Corporation Company shall assume pay the reasonable fees and direct all the defense thereof, including settlement, and expenses of any counsel retained by the Indemnified Parties Parties, promptly after statements therefor are received and (b) the Company shall cooperate 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 proceedingprovided, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigationhowever, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-the foregoing 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 andclaims. 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 aggregate 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, excluding dividends accrued and paid in cash or in kind at the stated dividend rates for the Preferred Stock and "Ordinary Dividends" (as defined in the Certificates of Designation). Section 7.3 In addition, the Company shall provide, for a period of not less than six years after the Closing Date, the Company's current directors and officers an insurance and indemnification policy that provides coverage for events occurring at or prior to the Closing Date (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 the Company 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 Company for such insurance, but in such case shall purchase as much of such coverage as possible for such amount. Section 7.4 This Article 7 shall survive the consummation of the transactions contemplated by this Agreement at the Closing Date, is intended to benefit the Indemnified Parties, shall be binding on all successors and assigns of the Company and shall be enforceable by the Indemnified Parties.

Appears in 1 contract

Samples: Recapitalization Agreement (Us Franchise Systems Inc/)

Indemnification and Insurance. (a) The articles Certificate of incorporation Incorporation and by-laws Bylaws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification substantially to the same effect as those than are set forth in the articles Certificate of incorporation Incorporation and the by-laws Bylaws, respectively, of the Company on the date hereofCompany, which provisions shall not be amended, modified repealed or otherwise repealed modified for a period of six years after from the Effective Time in any manner that would affect adversely affect the rights thereunder as of individuals who, at or prior to the Effective Time of individuals who at the Effective Time Time, were directors, officers, employees employees, fiduciaries or agents of the CompanyCompany or any of its subsidiaries. After the Closing, unless such modification is required after the Effective Time by law. (b) Parent shall cause the Surviving CorporationCorporation shall, 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 hereofLaw, to indemnify and hold harmless, harmless each present and former director, director and officer or employee of the Company or any and each of its Subsidiaries subsidiaries at or prior to the Effective Time (collectively, the "INDEMNIFIED PARTIES") against any all costs or and expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in settlement in connection with any claim, action, suit, proceeding or investigationinvestigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement any action or (y) otherwise with respect to any acts omission, in his or omissions her capacity as an officer, director, employee, fiduciary or agent, occurring at on or prior to before the Effective Time ("Indemnification Liabilities")Time, to the same extent as provided in the Certificate of Incorporation or Bylaws of the Company's articles of incorporation or by-laws , or any other applicable contract or agreement as agreement, in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contractinvestigation, (i) after the Effective Time, the Surviving Corporation shall assume pay the reasonable fees and direct all the defense thereof, including settlement, and expenses of counsel selected by the Indemnified Parties Parties, which counsel shall be reasonably satisfactory to the Surviving Corporation, promptly after statements therefor are received (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 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; provided, claim or proceedinghowever, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in be liable for any settlement effected without the exercise of the Indemnified PartySurviving Corporation'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 written consent (i) the Indemnified Party gives prior written consent, which consent shall not be unreasonably withheld or delayed); and provided, or further, that the Surviving Corporation shall not be obligated pursuant to this Section 5.4(a) to pay the fees and expenses of more than one counsel (ii) the terms selected by a plurality of the settlement provide that the applicable Indemnified Party shall have no responsibility Parties) for the discharge of all Indemnified Parties in any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party jurisdiction 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) single action 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 that two or more of such Indemnified Parties. Notwithstanding anything to Parties shall have conflicting interests in the contraryoutcome of such action; and provided, further, that, in the event (i) that any claim or claims for indemnification are is asserted or made within such six-year periodsix (6) years after the Effective Time, all rights to indemnification in respect of any such claim or claims 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 events that occurred on or prior to the Effective Time; or (ii) maintain in effect for six years from the Effective Time, if available, the current directors' and officers' liability insurance policies maintained by the Company (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 prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation, in order to obtain the insurance policies required under this Section 5.4(b), be required to expend in any year during such six (6) year period more than 300% of current annual premiums paid by the 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 Company Disclosure Schedule. (c) In the event the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such claims andcase, proper provision shall be made so that the successors and assigns of the Surviving Corporation shall succeed to the obligations set forth in this Section 5.4. (d) The provisions of this Section 5.4 (i) 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 any such person may have by contract or otherwise.

Appears in 1 contract

Samples: Merger Agreement (Lone Star Steakhouse & Saloon Inc)

Indemnification and Insurance. (a) The articles Parent and the Sub agree that all rights to indemnification existing in favor of incorporation the present or former directors, officers and by-laws 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 contain provisions with respect 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 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 thereunder) who at the Effective Time were directors, officers, employees or agents of are currently covered by the Company, unless 's existing officers' and directors' or fiduciary liability insurance policies on terms no less advantageous to such modification is required after the Effective Time by lawindemnified parties than such existing insurance. (bc) Parent The Surviving Corporation shall cause the Surviving Corporationindemnify and hold harmless (and shall advance expenses to), 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 and hold harmlesslaw, each present and former director, officer or employee officer, employee, fiduciary and agent of the Company or any Subsidiary of its Subsidiaries (collectivelythe Company including, without limitation, officers and directors, serving as such on the "INDEMNIFIED PARTIES") date hereof against any costs or and expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out investigation relating to any of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time ("Indemnification Liabilities")hereby, to the same extent as provided and in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract), (i) after the Effective Time, the Surviving Corporation shall assume pay the reasonable fees and direct all expenses of counsel selected by the defense thereofindemnified parties, including settlement, promptly as statements therefor are received and (ii) the Indemnified Parties shall parties hereto will cooperate 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 proceedingprovided, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigationhowever, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 , which consent shall not unreasonably be withheld. (d) The Surviving Corporation shall pay all reasonable costs and expenses, including attorneys' fees, that may be incurred by any indemnified parties in enforcing the indemnity and other obligations provided for in this Section 6.06(b), upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and 5.05. (e) In the event the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from or 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 its successors or more Indemnified Parties. Notwithstanding anything to the contrary, in the event assigns (i) that consolidates with or merges into any claim other person and is not the continuing or claims for indemnification are asserted or made within such six-year periodsurviving corporation (f) This Section 5.05, all rights to indemnification in respect which shall survive the consummation of any such claim or claims the Merger at the Effective Time and shall continue until for the disposition periods specified herein, is intended to benefit the Company, the Surviving Corporation, and any person or entity referenced in this Section 5.05 or indemnified hereunder each of any and all such claims andwhom may enforce the provisions of this Section 5.05 (whether or not parties to this Agreement).

Appears in 1 contract

Samples: Merger Agreement (New Grancare Inc)

Indemnification and Insurance. (a) The articles of incorporation From and by-laws after the First Effective Time, each of the First 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 Surviving Company on the date hereofshall, 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) and Parent shall cause the First Surviving CorporationCorporation and the Surviving Company to, indemnify and hold harmless, to the fullest extent permitted under by 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 and hold harmlessLaw, each present and former director, director and officer or employee of the Company or and any of its Subsidiaries (in each case, when acting in such capacity) (collectively, together with their respective heirs, executors and administrators, the "INDEMNIFIED PARTIES"“Company Indemnified Parties”) against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement damages or Liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) 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 pertaining to matters existing or occurring or actions or omissions taken prior to the transactions contemplated First Effective Time, including (i) the Transactions, and (ii) actions to enforce this Section 6.9 or any other indemnification or advancement right of any 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 this Agreement or applicable Law; provided that the Company Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by a final and nonappealable judicial determination that such Company Indemnified Party is not entitled to indemnification. (yb) otherwise with respect All rights to any indemnification and exculpation from Liabilities for acts or omissions occurring at or prior to the First Effective Time ("Indemnification Liabilities"), and rights to the same extent advancement of expenses relating thereto now existing in favor of any Company Indemnified Party or as provided in the Company's articles of incorporation Company Organizational Documents (or by-laws Company Subsidiary Organizational Documents) or any applicable contract or agreement indemnification agreements in existence as in effect on of the date hereofhereof between such Company Indemnified Party and the Company or any of its Subsidiaries that are set forth on Section 6.9(b) of the Company Disclosure Schedule, shall survive the Transactions and shall continue in each case full force and effect in accordance with their terms, and shall not be amended, repealed or otherwise modified for a period of six (6) years after the date hereof. In First Effective Time in any manner that would adversely affect the event rights thereunder of any such claimCompany Indemnified Parties. (c) Prior to the First Effective Time, actionthe Company shall and, suitif the Company is unable to, proceeding 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 investigation discovery period of at least six (whether arising before or 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 actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director or officer 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 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 First Effective Time, then, for a period of six (6) and subject to the specific terms of any indemnification contract, (i) years after the First Effective Time, the Surviving Corporation Company shall assume cause to be maintained in effect the D&O Insurance in place as of the date hereof with terms, conditions, retentions and direct all limits of liability that are at least as favorable as those provided in the defense thereofCompany’s existing policies as of the date hereof (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, including settlementconditions, 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 or omissions, which occurred or are alleged to have occurred at or before the First Effective Time; provided, however, that the Surviving Company shall not be obligated to make annual premium payments for such insurance to the extent such 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 Indemnified Parties Premium Cap, then the Surviving Company shall cooperate cause to be maintained policies of insurance which, in the defense Surviving Company’s good faith determination, provide the maximum coverage available at an annual premium equal to the Premium Cap. (d) The rights of any such matter. An each Company Indemnified Party pursuant to this Section 6.9 shall be in addition to, and not in limitation of, any other rights such Company Indemnified Party may have a right to participate in under the Company Organizational Documents (but not controlor Company Subsidiary Organizational Documents) the defense of or under any such matter with its own counsel and at its own expense. Notwithstanding the right of applicable Contracts or Law. (e) If Parent or the Surviving Corporation to assume and control the defense Company or any of such litigation, claim their respective successors or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if assigns (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel consolidate with a conflict of interest, (ii) the defendants in, or targets of, merge into any such litigation, claim other corporation 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 entity and shall not be unreasonably withheld the continuing or delayed, 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 terms successors and assigns of Parent or the Surviving Company shall assume all of the settlement provide that obligations set forth in this Section 6.9. (f) The provisions of this Section 6.9 and Section 2.5(c) shall survive the Indemnified Party shall have no responsibility First Effective Time and are intended to be for the discharge of any settlement amount benefit of, and impose no other obligations or duties on the shall be enforceable by, each Company Indemnified Party and the 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 his or investigation, shall promptly notify Parent her heirs and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andrepresentatives.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Synageva Biopharma Corp)

Indemnification and Insurance. Salix and Purchaser have agreed that all rights to indemnification by Santarus now existing in favor of each current or former officer or director of Santarus or its subsidiary (aeach an “Indemnified Party”) The articles as provided in Santarus’ certificate of incorporation and by-laws of or bylaws, in each case as in effect on November 7, 2013, or pursuant to any other agreements in effect on November 7, 2013, will be assumed by the Surviving Corporation shall contain provisions at the Effective Time and will remain in full force and effect in accordance 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 their terms. For 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 CorporationTime, to the fullest full extent permitted under applicable law or under law, Salix and the Surviving Corporation's articles of incorporation or by-laws or any indemnification agreement in effect as of Corporation (the date hereof“Indemnifying Parties”) will indemnify, to indemnify defend and hold harmless, harmless each present and former director, officer or employee Indemnified Table of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") Contents Party against any costs or expenses (including reasonable attorneys' fees), judgments, fines, all losses, claims, damages, liabilities liabilities, fees, expenses, judgments and amounts paid fines arising in settlement whole or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising part out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts actions or omissions in their capacity as such occurring at or prior to the Effective Time ("Indemnification Liabilities"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 paragraph within 15 days after receipt by Salix of a written request for such advance, subject to the same extent as provided in 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 Company's articles of incorporation or by-laws or any applicable contract or agreement as Surviving Corporation to maintain Santarus’ officers’ and directors’ liability insurance policies in effect on November 7, 2013 (the date hereof, in each case “D&O Insurance”) for a period of not less than six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) 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 shall assume may substitute for such insurance policies, policies of at least the same coverage and direct all 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 defense thereof, including settlementEffective Time; 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 Indemnified Parties shall cooperate 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 legal proceeding brought or threatened by any Santarus stockholder against Santarus or the Santarus Board relating to the Merger Agreement or any of the 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 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, right to review and comment on all material filings or targets of, responses to be made by Santarus in connection with any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available (and Santarus will give reasonable consideration to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or such comments) and (iii) the Surviving Corporation shall not have employed counsel satisfactory right to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, consult on any settlement with respect 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 proceeding (i) the Indemnified Party gives with no such settlement to be agreed to without Salix’s prior written consent, consent (which shall consent will not be unreasonably withheld withheld, conditioned or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims and.

Appears in 1 contract

Samples: Offer to Purchase (Salix Pharmaceuticals LTD)

Indemnification and Insurance. 21.1. Physiometrix shall indemnify and hold harmless Xxxxxx, its officers, shareholders, directors and employees, agents, successors and assigns, against any and all liability, damage, loss, cost or expense resulting from any third party claims made or suits brought due to or arising out of (ai) The articles of incorporation and by-laws of 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 Surviving Corporation shall contain provisions with respect to indemnification substantially Products at any time (except to the same effect as those 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 articles of incorporation defense thereof 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 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 rights thereunder as 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 Effective Time defense of individuals who at such claims or suits. Notwithstanding the Effective Time were directorsforegoing, officers, employees Physiometrix shall be entitled to assume the defense of any claims or agents of suits involving the Company, unless such modification is required after Licensed Trademarks or other intellectual property related to the Effective Time by lawProducts. (b) Parent shall cause the Surviving Corporation21.2. Physiometrix shall, 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 hereofat its expense, to indemnify indemnify, defend and hold harmless, each present Xxxxxx and former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES") agents and employees harmless from and against any all costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, and liabilities and amounts paid in settlement incurred in connection with any claim, action, suitsuit or proceeding maintaining that any patent, proceeding trademark or investigationother intellectual property rights of any third party are infringed or violated by the import, whether civil, criminal, administrative distribution or investigative, (x) arising out sale of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to PSA in the Effective Time ("Indemnification Liabilities"), to the same extent Territory as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereofthis Agreement. Physiometrix may, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contractwith Xxxxxx'x agreement, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have obtain for Xxxxxx the right to employ separate counsel continue to market, sell and to participate distribute the relevant product in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Territory (a "Third Party if (iLicense") 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) replace or modify the terms of relevant product so as to make the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to such matterproduct non-infringing. 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event If (i) that any claim and (ii) are not commercially and technically reasonable, or claims for indemnification are asserted or made within if Xxxxxx and Physiometrix cannot agree as described in this section 21.2, the parties may terminate the Agreement to distribute the relevant Product in the Territory, Physiometrix shall repurchase such six-year periodProducts and refund Xxxxxx'x purchase price, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and Xxxxxx at Physiometrix' expense, will remove all such claims andproducts from the Territory 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. (a) 2.1 The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation and the by-laws of the Company on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Effective 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 Corporationshall, to the fullest maximum 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 hereofby law, to indemnify indemnify, defend and hold harmlessharmless the LLCP Representative, each present any LLCP representative on the Operating Committee, LLCP and former directorthe employees, officer or employee partners, principals, agents, attorneys, accountants, representatives and Affiliates of the Company or any of its Subsidiaries LLCP (including, without limitation, LLCP Inc.) (collectively, the "INDEMNIFIED PARTIESLLCP Parties") ), from and against any costs or expenses (including reasonable attorneys' fees)all costs, expenses, ------------ liabilities, claims, judgments, fines, damages and losses, claimsincluding, damageswithout limitation, liabilities all attorneys' fees and amounts paid the cost of any investigation and preparation incurred in settlement connection therewith, incurred in connection with any claimthreatened, action, suit, proceeding pending or investigationcompleted action or proceeding, whether civil, criminal, administrative or investigativeinvestigative (collectively, (x) "Liabilities and Costs"), arising --------------------- out of or pertaining in any way related to the transactions contemplated 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 this Agreement any LLCP Party, the Company, shall advance (within five (5) Business Days of such request) any and all expenses, including, without limitation, any and all attorneys' fees and the cost of any investigation and preparation incurred in connection with any matter for which such LLCP Party is or (y) otherwise with respect may be entitled to any acts or omissions occurring at or prior indemnification hereunder; provided, however, that if and -------- ------- to the Effective Time ("Indemnification Liabilities"), extent that a court of competent jurisdiction finally determines that such LLCP Party is not permitted to the same extent as provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party indemnified with respect to such matter. In no event matter under applicable law, the Company shall the Surviving Corporation be liable entitled to be reimbursed for any settlement effected without its prior written consentexpenses so advanced. Any Indemnified The Company shall also indemnify each LLCP Party wishing from and against any and all Liabilities and Costs incurred in connection with any claim or action brought to claim indemnification enforce such LLCP Party's rights under this Section 6.06(b)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 LLCP Party in such proportion as is appropriate to reflect not only the relative benefits received by the Company, on the one hand, and LLCP, on the other hand, but also the relative fault of each, as well as any other equitable considerations. The Company's reimbursement, indemnity and contribution obligations shall be 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 learning the same terms, to all LLCP Parties. This Section 2 shall survive indefinitely the termination of this Agreement. --------- 2.3 At any such claimtime that an LLCP Representative is serving on the Board, action, suit, proceeding or investigation, the Company shall promptly notify Parent maintain in force and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than effect 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 contrarydirectors and officers liability insurance policies providing at least $5,000,000 in insurance coverage for director liability, in the event (i) that any claim or including coverage for 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 under federal and all such claims andstate securities laws.

Appears in 1 contract

Samples: Investor Rights Agreement (Polyphase Corp)

Indemnification and Insurance. (ai) The articles of incorporation and by-laws of Company shall indemnify 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 CorporationExecutive, to the fullest maximum extent permitted under applicable by law if he is made, or under the Surviving Corporation's articles of incorporation threatened to be made, a party to any threatened, pending or by-laws or any indemnification agreement in effect as of the date hereof, to indemnify and hold harmless, each 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 reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, completed action, suit, proceeding suit or investigationproceeding, whether civil, criminal, administrative or investigative, including an action by or in the right of Company to procure a judgment in its favor (xcollectively, a “Proceeding”), for any losses incurred by the Executive: i) arising out as a direct consequence of the discharge of Executive’s duties or pertaining 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 transactions contemplated 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 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 time, and in the sole discretion of Company’s Board of Directors, reimburse or advance to the Executive the funds necessary for payment of expenses, including attorneys’ fees and disbursements, incurred in connection with any Proceeding in advance of the final disposition of such Proceeding; provided, however, 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 reimbursement or advancement of expenses provided by, or granted pursuant to, this Agreement Section shall not be deemed exclusive of any other rights which the Executive may now or hereafter have under any law, bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in Executive’s official capacity and as to action in another capacity while holding such office; provided, however, that Company shall not be obligated to reimburse or advance expenses which have been paid directly to the Executive under the Company’s director and officer liability insurance. The right to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Section shall continue as to the Executive after he has ceased to be a director, officer or employee of Company and shall inure to the benefit of the heirs, executors and administrators of the Executive’s estate. (yii) otherwise with respect 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 Executive in any acts court of competent jurisdiction. Neither the failure of Company (including its board of directors, independent legal counsel, or omissions occurring at or its stockholders) to have made a determination prior to the Effective Time commencement of such action that such indemnification or reimbursement or advancement of expenses is proper in the circumstances nor an actual determination by Company ("Indemnification Liabilities")including 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 expenses incurred in connection with successfully establishing right to such indemnification or reimbursement or advancement of expenses, in whole or in part, in any such proceeding. Notwithstanding the foregoing, to the same extent as provided in the Company's articles of incorporation or by-laws or any that Code Section 409A is applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) and subject to the specific terms of any indemnification contractreimbursements or expenses under this Section, and to the extent that no exception under Code Section 409A is applicable, the following shall apply: (i) after the Effective Time, the Surviving Corporation shall assume all expenses that are taxable and direct all the defense thereof, including settlement, includable in income to be paid under this Section will only be paid if such expenses are incurred during Executive’s lifetime and the Indemnified Parties shall cooperate in the defense of any such matter. An Indemnified Party shall have for a right to participate in ten (but not control10) 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, year period commencing thereafter; (ii) any amount reimbursable or paid in one year shall not affect the defendants in, amount to be reimbursed 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 paid in addition to those available to the Surviving Corporation, or another tax year; (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's Executive must provide Company with reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution documentation of such litigation, claim or proceeding. The Surviving Corporation shall not settle any expenses; (iv) payments for such matter unless expenses will be made in cash within thirty (i30) days alter the expenses 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 Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to 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 reimbursements 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 (but the failure so to notify shall cannot relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims substituted 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 andanother benefit.

Appears in 1 contract

Samples: Executive Employment Agreement (Arrowroot Acquisition Corp.)

Indemnification and Insurance. (a) The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation and the by-laws of the Company on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Effective 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 To the fullest extent permitted permissible under applicable law or under Delaware law, the Surviving Corporation's articles of incorporation or by-laws or any indemnification agreement in effect as of the date hereof, to Company shall indemnify and hold harmlessharmless Executive for and against any and all losses, each present 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 former directorall other charges paid or payable in connection with any threatened, officer pending or employee 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 Subsidiaries Affiliates (collectively, the "INDEMNIFIED PARTIES") against any costs or expenses (including reasonable attorneys' fees“Indemnified Losses”), judgmentsand at Executive’s HB: 0000-0000-0000.9 election, fines, losses, claims, damages, liabilities and amounts paid in settlement shall defend Executive in connection with any claimof 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 Indemnified Losses, actionand shall, suitupon Executive’s written request, proceeding or investigationprovide copies of such insurance policies and endorsements and certificates evidencing such coverage. The Company shall advance to Executive Indemnified Losses as, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining when and to the transactions contemplated extent actually incurred or suffered by this Agreement or (y) otherwise Executive. In connection with respect to any acts or omissions occurring at or prior request for such advance of Executive’s Indemnified Losses, Executive shall execute and deliver to the Effective Time ("Indemnification Liabilities")Company an undertaking to repay any amounts paid, advanced, or reimbursed by the Company for such Indemnified Losses to the same extent as provided in that it is ultimately determined, following the Company's articles final disposition of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, actionthat Executive is not entitled to indemnification hereunder. The foregoing indemnification, suit, proceeding or investigation (whether arising before or after the Effective Time) insurance and subject adverse obligations shall not apply to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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 proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen brought by the Surviving Corporation Company or its Affiliates to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all enforce its 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andAgreement.

Appears in 1 contract

Samples: Employment Agreement (CorEnergy Infrastructure Trust, Inc.)

Indemnification and Insurance. (a) The articles From and after the Effective Time, each of incorporation Parent 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 indemnify 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 Corporationhold harmless, to the fullest extent permitted under applicable law Applicable Laws (and shall also pay or advance expenses as incurred, to the fullest extent permitted under the Surviving Corporation's articles of incorporation Applicable Laws, to), each Person who is now, or by-laws or has been at any indemnification agreement in effect as of time prior to the date hereofof this Agreement or who becomes prior to the Effective Time, to indemnify and hold harmless, each present and former director, a director or officer or employee of the Company or any of its Subsidiaries (collectively, the "INDEMNIFIED PARTIES"“Indemnified Parties”) against any costs or expenses (including reasonable attorneys' fees, expenses and disbursements), judgments, fines, losses, claims, damages, liabilities and 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, (x) arising out of or pertaining related to such Indemnified Party’s service as a director or officer of the transactions contemplated by this Agreement Company or (y) otherwise with respect to any acts or omissions occurring its Subsidiaries at or prior to the Effective Time ("Indemnification Liabilities")or services performed by such Indemnified Party, at the 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 same extent as provided Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including, but not limited to, in connection with (i) the Company's articles of incorporation or by-laws Transactions and (ii) actions to enforce this provision or any applicable contract other indemnification or agreement as advancement right of any Indemnified Party in effect on the date hereof, in each case for a period hereof and copies of six years after which have been made available to Parent prior to the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) investigation, Parent and subject to the specific terms of any indemnification contract, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall reasonably cooperate in or use reasonable best efforts in the vigorous 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; provided, claim or proceedinghowever, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, that Parent and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to such matter. In no event shall the Surviving Corporation be liable for any settlement effected without its their respective prior written consent. Any The Surviving Corporation shall pay all reasonable expenses, including reasonable attorneys’ fees, expenses and disbursements, that may be incurred by any Indemnified Party wishing to claim indemnification under in enforcing the indemnity and other obligations provided in this Section 6.06(b6.10. (b) Without limiting the generality of Section 6.10(a), upon learning of if any such Indemnified Party becomes involved in any actual or threatened claim, action, suit, proceeding or investigationinvestigation covered by this Section 6.10 after the Effective Time, shall promptly notify Parent and the Surviving Corporation shall, to the fullest extent permitted by Applicable Laws, advance to such Indemnified Party his or her legal or other expenses (but including attorneys’ fees, expenses and disbursements and the failure so to notify shall not relieve 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 liability which it may have under this Section 6.06(brequirement for the posting of a bond or any other terms or conditions other than those expressly set forth herein. (c) except Prior to the extent such failure materially prejudices such Effective Time, the Company shall and, if the Company is unable to, Parent shall cause the Surviving Corporation). The , 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 a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) the Company’s existing policies with respect to any actual or 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 Effective Time (including in connection with this Agreement or the transactions or actions contemplated hereby); provided, however, that in no event shall the Company or the Surviving Corporation expend for such policies pursuant to this sentence an annual premium amount in excess of 300% of the annual premiums currently paid by the Company for such insurance (the “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 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 Company’s existing policies as of the date hereof, or the Surviving Corporation shall, 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 liability that are at least as favorable to the Indemnified Parties as provided in the Company’s existing policies as of the date hereof; provided, 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 provided, further, that if the annual premiums of such insurance coverage exceed the Maximum Premium, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, 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 of their respective successors or assigns shall (i) 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 matter unless there iscase, under applicable standards proper provisions shall be made so that the successors and assigns of professional conductParent or the Surviving Corporation, a conflict 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 her heirs and his or her legal representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. The provisions of this Section 6.10 shall survive the consummation of the Merger. (f) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (including any matters arising in connection with the Transactions) now existing in favor of the current or former directors or officers of the Company or any of its Subsidiaries as provided in any agreement in effect on any significant issue the date hereof and made available to Parent prior to the date hereof between the positions Company or any of its Subsidiaries, on the one hand, and any two current or more Indemnified Partiesformer director or officer of the Company or any Company Subsidiary, on the other hand, will be 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 their terms. The Charter and the 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. (g) Notwithstanding anything herein to the contrary, in the case of Sections 6.10(c) and 6.10(f) in the event (i) that any claim or claims for indemnification are is asserted or made within such six-year periodon or prior to the sixth anniversary of the Effective Time, all rights to indemnification in respect of any such claim or claims shall continue until the final disposition of any and all such claims andclaim.

Appears in 1 contract

Samples: Merger Agreement (TPC Group Inc.)

Indemnification and Insurance. (a) The articles of incorporation Licensee shall indemnify, defend 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 hold harmless HJF and the by-laws of the Company on the date hereofits current and former directors, which provisions shall not be amendedboard members, 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 directorstrustees, officers, employees employees, and agents and their respective successors, heirs and assigns (collectively, the “Indemnitees”), from and against any and all third party claims, liabilities, costs, expenses, damages, deficiencies, losses or agents 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 to (i) 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 (iii) the breach of any representation or warranty by Licensee in 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 Section and will cooperate with and authorize Licensee to carry out the sole management and defense of such Claim. In the event HJF decides to employ its own separate counsel in connection with the sole management and defense by Licensee of the CompanyClaim, unless the employ of such modification is required after 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 Effective Time by lawprior written approval of Licensee. (b) Parent HJF shall cause the Surviving Corporationindemnify, 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 defend and hold harmless, each present harmless the Licensee and its current and former directordirectors, officer or employee of the Company or any of its Subsidiaries board members, trustees, officers, employees, and agents and their respective successors, heirs and assigns (collectively, the "INDEMNIFIED PARTIES") “Licensee Indemnitees”), from and against any costs and all third party claims, liabilities, costs, expenses, damages, deficiencies, losses or expenses obligations of any kind or nature (including reasonable attorneys' fees)’ fees and other costs and expenses of litigation) (collectively “Claims”) based upon, judgmentsarising out of, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising otherwise relating to Claims that arise out of or pertaining are related to the transactions contemplated breach of any representation or warranty by HJF in this Agreement or (y) otherwise 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 Section and will cooperate with respect and authorize HJF to any acts or omissions occurring at or prior to carry out the Effective Time ("Indemnification Liabilities"), to the same extent as provided in the Company's articles sole management and defense of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereofsuch Claim. In the event Licensee decides to employ its own separate counsel in connection with the sole management and defense by HJF of the Claim, the employ of such counsel shall be at Licensee’s sole expense. Licensee will not compromise or settle any such claim, action, suit, action or proceeding or investigation (whether arising before or after the Effective Time) and subject to indemnification pursuant to this Section without the specific terms prior written approval of any indemnification contractHJF. (c) The indemnifying Party shall, (i) after the Effective Time, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate 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, provide attorneys reasonably acceptable to the other to defend against any actions brought or filed with respect to the subject of indemnity contained herein, whether or not such actions are rightfully brought. (d) Beginning at the time any such product, process or service is being commercially distributed or sold (other than for the purpose of obtaining regulatory approvals) by Licensee or by any sublicensee or agent 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. Notwithstanding During clinical trials of any such product, process, or service, Licensee shall, at its sole cost and expense, procure and maintain commercial general liability insurance in such equal or lesser amount as HJF shall require, naming the right 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 Surviving Corporation limits described above (including deductibles or retentions that are in excess of $[***]annual aggregate) such self-insurance program must be acceptable to assume and control the defense 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 litigationinsurance upon request of HJF. Licensee shall provide HJF with written notice at least [***] days prior to the cancellation, claim non-renewal, or proceedingmaterial change in such insurance; if Licensee does not obtain replacement insurance providing comparable coverage within such [***] day period, such Indemnified Party HJF shall have the right to employ separate counsel and to participate terminate this Agreement in accordance with Section 10.2 (c). (f) Licensee shall maintain such commercial general liability insurance beyond the defense expiration or termination of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if this Agreement (i) during the use 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 counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, Licensee and (ii) a period after 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 period referred to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iiif)(i) 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 consentabove, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to such matter. In period 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 (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more less than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims and[***] years.

Appears in 1 contract

Samples: Exclusive License Agreement (Baudax Bio, Inc.)

Indemnification and Insurance. (a) The articles From the date hereof, DPSG shall, to the fullest extent permissible by applicable Law, indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of incorporation and by-laws DPSG or of a DPSG Subsidiary (collectively, the Surviving Corporation shall contain provisions “Indemnified Parties”) with respect to indemnification substantially all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any Legal Proceeding (whether civil, criminal, administrative or 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 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 (including 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 time prior to, the Effective Time (including any Legal Proceeding relating in whole or in part to the same effect as those Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any 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 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 articles of incorporation and the by-laws of the Company on the date hereofDPSG Charter, which provisions shall not be amended, modified repealed or otherwise repealed for modified in 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 Indemnified Parties or the Effective Time were directors, officers, employees or and agents of DPSG and the CompanyDPSG Subsidiaries. In addition, unless such modification is required after from the Effective Time 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 law. any Indemnified Party in connection with any Legal Proceeding (bincluding in connection with enforcing the indemnity and other obligations referred to in this Section 7.09) Parent shall cause the Surviving Corporation, as incurred to the fullest extent permitted under applicable law Law. (b) DPSG (whether prior to or after the 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 such Indemnified Party from all liability arising out of such Claim or such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. DPSG and the Surviving Corporation's articles Indemnified Parties shall cooperate in the defense of incorporation any Claim and shall provide access to properties and individuals as reasonably requested and furnish or bycause 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-laws or any indemnification agreement 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, to indemnify and hold harmless, each 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 reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any hereof covering acts or omissions occurring at or prior to the Effective Time with respect to those individuals who are currently ("Indemnification Liabilities"), and any additional individuals who prior to the same extent 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 provided in the Company's articles of incorporation or by-laws or any applicable contract or agreement favorable as DPSG’s existing policies in effect on the date hereofof 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 after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or 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 Transactions). Notwithstanding anything to the contrary contained herein, in no event shall Maple Parent or DPSG after the Effective Time be required to expend for any policies contemplated by this clause (c) an annual premium amount in excess of 350% of the 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 subject DPSG shall use its reasonable best efforts to cause such D&O Insurance 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 7.09 will survive the specific terms Effective Time and are (i) 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 indemnification contract, Indemnified Party to whom this Section 7.09 applies unless (iA) 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, the Surviving Corporation shall assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate in the defense Maple Parent or any 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 their respective successors or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if assigns (i) consolidates with or merges into any other Person and is not 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, continuing or targets of, any such litigation, claim surviving corporation 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 entity of such litigation, claim consolidation 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, merger or (ii) the terms transfers or conveys all or substantially all of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of its properties and assets to any settlement amount Person, then, and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to in each 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)case, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group necessary, proper provision will be represented by a single law firm (plus no more than one local counsel made so that the successors and assigns of DPSG or Maple Parent, as applicable, will assume the obligations set forth in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims andthis Section 7.09.

Appears in 1 contract

Samples: Merger Agreement (Dr Pepper Snapple Group, Inc.)