Indemnification by Surviving Corporation. (a) From and after the Effective Time, the Surviving Corporation will indemnify and hold harmless the present and former officers and directors of the Company and its subsidiaries (solely when acting in such capacity) determined as of the Effective Time (the “Company Parties”), against all losses, expenses, claims, damages, liabilities and amounts that are paid in settlement of, or otherwise in connection with, any claim, action, suit, proceeding or investigation (a “Claim”), to which any such person is or may become a party by virtue of his or her service as a present or former director or officer of the Company or any of its subsidiaries and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time (including the Transactions), in each case to the fullest extent permitted under the DGCL (and shall pay expenses in advance of the final disposition of any such action or proceeding to each Company Party to the fullest extent permitted under the DGCL, upon receipt from the Company Party to whom expenses are advanced of the undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification). (b) Any Company Party wishing to claim indemnification under this Section 6.15, upon learning of any such Claim, shall notify the Surviving Corporation (although the failure so to notify the Surviving Corporation shall not relieve the Surviving Corporation from any liability that the Surviving Corporation may have under this Section 6.15, except to the extent such failure materially prejudices the Surviving Corporation). The Surviving Corporation shall have the right to assume the defense thereof and the Surviving Corporation shall not be liable to such Company Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Company Parties in connection with the defense thereof, except that if the Surviving Corporation elects not to assume such defense or if there is an actual or potential conflict of interest between, or different defenses exist for the Surviving Corporation and the Company Parties, the Company Parties may retain counsel satisfactory to them and the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Company Parties promptly as statements therefor are received; provided, however, that (i) the Surviving Corporation shall not, in connection with any one such action or proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys in addition to any appropriate local counsel at any time for all Company Parties, (ii) the Surviving Corporation and the Company Parties will cooperate in the defense of any such matter and (iii) the Surviving Corporation shall not be liable for any settlement effected without its prior written consent, which consent will not be unreasonably withheld or delayed, and provided further, that the Surviving Corporation shall not have any obligation hereunder to any Company Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and not subject to further appeal, that the indemnification of such Company Party in the manner contemplated hereby is prohibited by applicable Law. (c) The Surviving Corporation shall cause to be maintained in effect for not less than three (3) years after the Effective Time directors’ and officers’ liability insurance and fiduciary liability insurance (“D&O Insurance”) that is substantially equivalent in coverage to the Company’s current insurance, with an amount of coverage of not less than 100% of the amount of coverage maintained by the Company as of the date of this Agreement with respect to matters occurring prior to the Effective Time; provided, however, that if the existing D&O Insurance expires, is terminated or canceled, or if the annual premium therefor is increased to an amount in excess of 150% of the last annual premium paid prior to the date of this Agreement (the “Current Premium”), in each case during such three (3) year period, the Surviving Corporation will use its best efforts to obtain D&O Insurance in an amount and scope as great as can be obtained for the remainder of such period for a premium not in excess (on an annualized basis) of 150% of the Current Premium. The provisions of this Section 6.15(c) shall be deemed to have been satisfied if prepaid policies shall have been obtained by the Company prior to Closing, which policies provide such directors and officers with coverage for an aggregate period of three (3) years with respect to claims arising from facts or events that occurred on, or prior to, the Effective Time, including the Transactions. If such prepaid policies shall have been obtained by the Company prior to the Closing, then the Surviving Corporation shall use its reasonable best efforts to maintain such policies in full force and effect and to continue to honor the Company’s obligations thereunder. (d) Subject to applicable Law, the Charter and Bylaws shall not be amended in a manner which adversely affects the rights of the Company Parties under this Section 6.15. (e) This Section 6.15 shall survive the consummation of the Merger and is intended to be for the benefit of, and shall be enforceable by, the Company Parties referred to herein, their heirs and personal representatives and shall be binding on the Surviving Corporation and its successors and assigns. (f) If 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 or conveys all or substantially all of its properties and assets to any person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Surviving Corporation shall assume the obligations set forth in this Section 6.15.
Appears in 1 contract
Samples: Merger Agreement (Ball Corp)
Indemnification by Surviving Corporation. (a) From and after the Effective Time, the Surviving Corporation will indemnify shall indemnify, defend and hold harmless the present and former officers and directors each person who is now an officer or director of the Company and its subsidiaries (solely when acting in such capacity) determined as or a Subsidiary of the Effective Time (the “Company Parties”), against all losses, expenses, claims, damages, costs, expenses or liabilities and amounts that are paid in settlement of, or otherwise in connection with, with any claim, action, suit, proceeding or investigation (a “Claim”), to which any arising out of the fact that such person is or may become a party by virtue of his was an officer or her service as a present or former director or officer of the Company or any a Subsidiary of its subsidiaries and arising the Company (or out of actual any action taken by any such person on behalf of the Company or alleged eventsa Subsidiary of the Company), actions pertaining to any matter existing or omissions occurring or alleged to have occurred at on or prior to the Effective Time (including the Transactionstransactions contemplated by this Agreement), in whether asserted or claimed prior to, or on or after, the Effective Time. In each case such indemnification shall be to the fullest full extent permitted under the DGCL applicable law (and shall the Surviving Corporation will pay expenses in advance of the final disposition of any such action or proceeding to each such director or officer of the Company Party or a Subsidiary of the Company seeking indemnification hereunder to the fullest full extent permitted under the DGCL, upon receipt from the Company Party to whom expenses are advanced of the undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnificationby law).
(b) Any Company Party wishing to claim indemnification under this Section 6.15For a period of six years after the Effective Time, upon learning of any such Claim, shall notify the Surviving Corporation (although the failure so to notify the Surviving Corporation shall not relieve maintain officers' and directors' liability insurance for all persons currently covered under the Surviving Corporation from any Company's officers' and directors' liability that the Surviving Corporation may have under this Section 6.15insurance policies, except in their capacities as officers and directors, on terms substantially no less advantageous to the extent covered persons than such failure materially prejudices the Surviving Corporation). The Surviving Corporation shall have the right to assume the defense thereof and the Surviving Corporation shall not be liable to such Company Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Company Parties in connection with the defense thereofexisting insurance, except that if the Surviving Corporation elects not to assume such defense or if there is an actual or potential conflict of interest between, or different defenses exist for the Surviving Corporation and the Company Parties, the Company Parties may retain counsel satisfactory to them and the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Company Parties promptly as statements therefor are received; provided, however, that (i) the Surviving Corporation shall not, in connection with any one such action or proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys in addition pertaining to any appropriate local counsel at any time for all Company Parties, (ii) the Surviving Corporation and the Company Parties will cooperate in the defense of any such matter and (iii) the Surviving Corporation shall not be liable for any settlement effected without its existing or occurring on or prior written consent, which consent will not be unreasonably withheld or delayed, and provided further, that the Surviving Corporation shall not have any obligation hereunder to any Company Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and not subject to further appeal, that the indemnification of such Company Party in the manner contemplated hereby is prohibited by applicable Law.
(c) The Surviving Corporation shall cause to be maintained in effect for not less than three (3) years after the Effective Time directors’ and officers’ liability insurance and fiduciary liability insurance (“D&O Insurance”) that is substantially equivalent in coverage to including the Company’s current insurancetransactions contemplated by this Agreement), with an amount of coverage of not less than 100% of the amount of coverage maintained by the Company as of the date of this Agreement with respect to matters occurring whether asserted or claimed prior to to, or on or after the Effective Time; provided, however, that if the existing D&O Insurance expires, is terminated Surviving Corporation shall not be required to maintain or canceled, or if the procure such coverage to pay an annual premium therefor is increased to an amount in excess of 150200% (the "Cap") of the last current annual premium paid prior to by the date Company for its existing coverage; and provided, further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of this Agreement (the “Current Premium”), in each case during such three (3) year periodCap, the Surviving Corporation will use its best efforts shall only be required to obtain D&O Insurance in an amount and scope as great much coverage as can be obtained for by paying an annual premium equal to the remainder Cap.
(c) The Indemnification Agreements among the Company and each of such period for a premium the directors of the Company (the "Indemnification Arrangements") shall not in excess (on an annualized basis) of 150% any way be limited by or be affected by the rights and obligations of the Current PremiumCompany or of the directors and officers under this Agreement except as expressly provided herein, and the execution and delivery of this Agreement shall not in any way limit or affect the rights and obligations of the Company or the other party or parties thereto under any such Indemnification Arrangement.
(d) This Section 5.08 shall survive the consummation of the Merger. The provisions of this Section 6.15(c) shall be deemed to have been satisfied if prepaid policies shall have been obtained by the Company prior to Closing, which policies provide such directors and officers with coverage for an aggregate period of three (3) years with respect to claims arising from facts or events that occurred on, or prior to, the Effective Time, including the Transactions. If such prepaid policies shall have been obtained by the Company prior to the Closing, then the Surviving Corporation shall use its reasonable best efforts to maintain such policies in full force and effect and to continue to honor the Company’s obligations thereunder.
(d) Subject to applicable Law, the Charter and Bylaws shall not be amended in a manner which adversely affects the rights of the Company Parties under this Section 6.15.
(e) This Section 6.15 shall survive the consummation of the Merger and is 5.08 are intended to be for the benefit of, and shall be enforceable by, by the present and former directors or officers of the Company Parties referred to hereinand its Subsidiaries, their heirs and personal representatives and as the case may be. The rights provided under this Section 5.08 shall be binding on in addition to, and not in lieu of, any rights to indemnity which any party may have under the Certificate of Incorporation or Bylaws of the Company or the Surviving Corporation and its successors and assigns.
(f) or any other agreements. If the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person corporation or entity and shall is not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys all or substantially all of its properties and or assets to any personindividual, thencorporation or any other entity, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Surviving Corporation shall assume the obligations set forth in this Section 6.155.08.
(e) In the event that any action, suit, proceeding or investigation relating to this Agreement or the transactions contemplated hereby is commenced, whether before or after the Effective Time, the parties hereto agree to cooperate and use their respective reasonable efforts to vigorously defend against and respond thereto.
Appears in 1 contract
Samples: Merger Agreement (Westerbeke Corp)
Indemnification by Surviving Corporation. (a) From and after the Effective Time, the Surviving Corporation will indemnify shall indemnify, defend and hold harmless the present and former officers and directors each person who is now an officer or director of the Company and its subsidiaries (solely when acting in such capacity) determined as of the Effective Time (the “Company Parties”), against all losses, expenses, claims, damages, costs, expenses or liabilities and amounts that are paid in settlement of, or otherwise in connection with, with any claim, action, suit, proceeding or investigation arising out of the fact that such person is an officer or director of the Company (a “Claim”), to which or out of any action taken by any such person is or may become a party by virtue of his or her service as a present or former director or officer on behalf of the Company Company), pertaining to any matter existing or any of its subsidiaries and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at on or prior to the Effective Time (including the Transactionstransactions contemplated by this Agreement), in whether asserted or claimed prior to, or on or after, the Effective Time. In each case such indemnification shall be to the fullest full extent permitted under the DGCL applicable law (and shall the Surviving Corporation will pay expenses in advance of the final disposition of any such action or proceeding to each such director or officer of the Company Party seeking indemnification hereunder to the fullest full extent permitted under the DGCL, upon receipt from the Company Party to whom expenses are advanced of the undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnificationby law).
(b) Any Company Party wishing to claim indemnification under this Section 6.15For a period of six years after the Effective Time, upon learning of any such Claim, shall notify the Surviving Corporation (although the failure so to notify the Surviving Corporation shall not relieve maintain officers' and directors' liability insurance for all persons currently covered under the Surviving Corporation from any Company's officers' and directors' liability that the Surviving Corporation may have under this Section 6.15insurance policies, except in their capacities as officers and directors, on terms substantially no less advantageous to the extent covered persons than such failure materially prejudices the Surviving Corporation). The Surviving Corporation shall have the right to assume the defense thereof and the Surviving Corporation shall not be liable to such Company Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Company Parties in connection with the defense thereofexisting insurance, except that if the Surviving Corporation elects not to assume such defense or if there is an actual or potential conflict of interest between, or different defenses exist for the Surviving Corporation and the Company Parties, the Company Parties may retain counsel satisfactory to them and the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Company Parties promptly as statements therefor are received; provided, however, that (i) the Surviving Corporation shall not, in connection with any one such action or proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys in addition pertaining to any appropriate local counsel at any time for all Company Parties, (ii) the Surviving Corporation and the Company Parties will cooperate in the defense of any such matter and (iii) the Surviving Corporation shall not be liable for any settlement effected without its existing or occurring on or prior written consent, which consent will not be unreasonably withheld or delayed, and provided further, that the Surviving Corporation shall not have any obligation hereunder to any Company Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and not subject to further appeal, that the indemnification of such Company Party in the manner contemplated hereby is prohibited by applicable Law.
(c) The Surviving Corporation shall cause to be maintained in effect for not less than three (3) years after the Effective Time directors’ and officers’ liability insurance and fiduciary liability insurance (“D&O Insurance”) that is substantially equivalent in coverage to including the Company’s current insurancetransactions contemplated by this Agreement), with an amount of coverage of not less than 100% of the amount of coverage maintained by the Company as of the date of this Agreement with respect to matters occurring whether asserted or claimed prior to to, or on or after the Effective Time; provided, however, that if the existing D&O Insurance expires, is terminated Surviving Corporation shall not be required to maintain or canceled, or if the procure such coverage to pay an annual premium therefor is increased to an amount in excess of 150200% of the last current annual premium paid prior to by the date of this Agreement Company for its existing coverage (the “Current Premium”"Cap"); and provided, further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in each case during such three (3) year periodexcess of 200% of the Cap, the Surviving Corporation will use its best efforts shall only be required to obtain D&O Insurance in an amount and scope as great much coverage as can be obtained for the remainder of such period for a by paying an annual premium not in excess (on an annualized basis) of 150equal to 200% of the Current PremiumCap.
(c) The Indemnity Agreements dated August 7, 2002 among the Company and each of the members of the Special Committee (the "Indemnification Arrangements") shall not in any way be limited by or be affected by the rights and obligations of the Company or of the directors and officers under this Agreement except as expressly provided herein, and the execution and delivery of this Agreement shall not in any way limit or affect the rights and obligations of the Company or the other party or parties thereto under any such Indemnification Arrangement.
(d) This Section 5.08 shall survive the consummation of the Merger. The provisions of this Section 6.15(c) shall be deemed to have been satisfied if prepaid policies shall have been obtained by the Company prior to Closing, which policies provide such directors and officers with coverage for an aggregate period of three (3) years with respect to claims arising from facts or events that occurred on, or prior to, the Effective Time, including the Transactions. If such prepaid policies shall have been obtained by the Company prior to the Closing, then the Surviving Corporation shall use its reasonable best efforts to maintain such policies in full force and effect and to continue to honor the Company’s obligations thereunder.
(d) Subject to applicable Law, the Charter and Bylaws shall not be amended in a manner which adversely affects the rights of the Company Parties under this Section 6.15.
(e) This Section 6.15 shall survive the consummation of the Merger and is 5.08 are intended to be for the benefit of, and shall be enforceable byby the present directors or officers of the Company, as the case may be. The rights provided under this Section 5.08 shall be in addition to, and not in lieu of, any rights to indemnity which any party may have under the Certificate of Incorporation or Bylaws of the Company Parties referred to herein, their heirs and personal representatives and shall be binding on or the Surviving Corporation and its successors and assigns.
(f) or any other agreements. If the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person corporation or entity and shall is not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys all or substantially all of its properties and or assets to any personindividual, thencorporation or any other entity, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Surviving Corporation shall assume the obligations set forth in this Section 6.155.08.
(e) In the event that any action, suit, proceeding or investigation relating thereto or to the transactions contemplated by this Agreement is commenced, whether before or after the Effective Time, the parties hereto agree to cooperate and use their respective reasonable efforts to vigorously defend against and respond thereto.
Appears in 1 contract
Samples: Merger Agreement (International Specialty Products Inc /New/)
Indemnification by Surviving Corporation. (a) From and after the Effective TimeDate, the Surviving Corporation will indemnify shall indemnify, defend and hold harmless the present and former officers and directors each person who is now an officer or director of the Company and its subsidiaries (solely when acting in such capacity) determined as of the Effective Time (the “Company Parties”), ISP against all losses, expenses, claims, damages, costs, expenses or liabilities and amounts that are paid in settlement of, or otherwise in connection with, with any claim, action, suit, proceeding or investigation arising out of the fact that such person is an officer or director of ISP (a “Claim”), to which or out of any action taken by any such person is on behalf of ISP), pertaining to any matter existing or may become a party by virtue of his or her service as a present or former director or officer of the Company or any of its subsidiaries and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at on or prior to the Effective Time Date (including the Transactionstransactions contemplated by this Agreement), in whether asserted or claimed prior to, or on or after, the Effective Date. In each case such indemnification shall be to the fullest full extent permitted under the DGCL applicable law (and shall the Surviving Corporation will pay expenses in advance of the final disposition of any such action or proceeding to each Company Party such director or officer of ISP seeking indemnification hereunder to the fullest full extent permitted under the DGCL, upon receipt from the Company Party to whom expenses are advanced of the undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnificationby law).
(b) Any Company Party wishing to claim indemnification under this Section 6.15For a period of six years after the Effective Date, upon learning of any such Claim, shall notify the Surviving Corporation (although the failure so to notify the Surviving Corporation shall not relieve the Surviving Corporation from any maintain officers' and directors' liability that the Surviving Corporation may have insurance for all persons currently covered under this Section 6.15ISP's officers' and directors' liability insurance policies, except in their capacities as officers and directors, on terms substantially no less advantageous to the extent covered persons than such failure materially prejudices existing insurance, pertaining to any matter existing or occurring on or prior to the Surviving CorporationEffective Date (including the transactions contemplated by this Agreement). The Surviving Corporation shall have the right to assume the defense thereof and the Surviving Corporation shall not be liable to such Company Parties for any legal expenses of other counsel , whether asserted or any other expenses subsequently incurred by such Company Parties in connection with the defense thereof, except that if the Surviving Corporation elects not to assume such defense or if there is an actual or potential conflict of interest betweenclaimed prior to, or different defenses exist for on or after the Surviving Corporation and the Company Parties, the Company Parties may retain counsel satisfactory to them and the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Company Parties promptly as statements therefor are receivedEffective Date; provided, however, that (i) the Surviving Corporation shall not, in connection with any one such action or proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys in addition to any appropriate local counsel at any time for all Company Parties, (ii) the Surviving Corporation and the Company Parties will cooperate in the defense of any such matter and (iii) the Surviving Corporation shall not be liable for any settlement effected without its prior written consent, which consent will not be unreasonably withheld or delayed, and provided further, that the Surviving Corporation shall not have any obligation hereunder be required to any Company Party when maintain or procure such coverage to pay an annual premium in excess of 200% of the current annual premium paid by ISP for its existing coverage (the "Cap"); and if a court of competent jurisdiction shall ultimately determineprovided, and such determination shall have become final and not subject to further appealfurther, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of 200% of the indemnification Cap, the Surviving Corporation shall only be required to obtain as much coverage as can be obtained by paying an annual premium equal to 200% of such Company Party in the manner contemplated hereby is prohibited by applicable LawCap.
(c) The Surviving Corporation This Section 11.03 shall cause to be maintained in effect for not less than three (3) years after survive the Effective Time directors’ and officers’ liability insurance and fiduciary liability insurance (“D&O Insurance”) that is substantially equivalent in coverage to the Company’s current insurance, with an amount of coverage of not less than 100% consummation of the amount of coverage maintained by the Company as of the date of this Agreement with respect to matters occurring prior to the Effective Time; provided, however, that if the existing D&O Insurance expires, is terminated or canceled, or if the annual premium therefor is increased to an amount in excess of 150% of the last annual premium paid prior to the date of this Agreement (the “Current Premium”), in each case during such three (3) year period, the Surviving Corporation will use its best efforts to obtain D&O Insurance in an amount and scope as great as can be obtained for the remainder of such period for a premium not in excess (on an annualized basis) of 150% of the Current PremiumMerger. The provisions of this Section 6.15(c) shall be deemed to have been satisfied if prepaid policies shall have been obtained by the Company prior to Closing, which policies provide such directors and officers with coverage for an aggregate period of three (3) years with respect to claims arising from facts or events that occurred on, or prior to, the Effective Time, including the Transactions. If such prepaid policies shall have been obtained by the Company prior to the Closing, then the Surviving Corporation shall use its reasonable best efforts to maintain such policies in full force and effect and to continue to honor the Company’s obligations thereunder.
(d) Subject to applicable Law, the Charter and Bylaws shall not be amended in a manner which adversely affects the rights of the Company Parties under this Section 6.15.
(e) This Section 6.15 shall survive the consummation of the Merger and is 11.03 are intended to be for the benefit of, and shall be enforceable byby the present directors or officers of ISP, as the Company Parties referred to herein, their heirs and personal representatives and case may be. The rights provided under this Section 11.03 shall be binding on in addition to, and not in lieu of, any rights to indemnity which any party may have under the Certificate of Incorporation or By-Laws of ISP or the Surviving Corporation and its successors and assigns.
(f) or any other agreements. If the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person corporation or entity and shall is not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys all or substantially all of its properties and or assets to any personindividual, thencorporation or any other entity, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Surviving Corporation shall assume the obligations set forth in this Section 6.1511.03.
Appears in 1 contract
Samples: Merger Agreement (Isp Holdings Inc)