Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law. (b) From and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL). (c) Parent shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium. (d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11. (e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 3 contracts
Samples: Merger Agreement (Informax Inc), Merger Agreement (Invitrogen Corp), Merger Agreement (Invitrogen Corp)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate From the Effective Time and ending on the sixth anniversary of incorporation and bylaws of the Effective Time, Parent will cause the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope indemnify, defend and no less favorable to the Indemnified Parties hold harmless (as defined belowincluding by advancing expenses) as set forth in the certificate of incorporation each current and bylaws former director and officer of the Company and any of the Company Subsidiaries, each Employee and each person who served as a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise if such service was at the request or for the benefit of the Company or any of the Company Subsidiaries (each, an “Indemnified Party” and, collectively, the “Indemnified Parties”) against all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses (including fees and expenses of legal counsel) in connection with any actual or threatened claim, suit, action, proceeding or investigation (whether civil, criminal, administrative or investigative) (each, a “Claim”), whenever asserted, arising out of, relating to or in connection with any action or omission relating to their position with the Company or the Company Subsidiaries occurring or alleged to have occurred before or at the Effective Time (including any Claim relating in whole or in part to the Agreement or the Transactions), to the fullest extent permitted under applicable Law. Each of (x) the respective organizational documents of each of the Company Subsidiaries as currently in effect and (y) any indemnification agreements with an Indemnified Party listed on Section 6.5(a) of the date of this AgreementCompany Disclosure Letter, which provisions shall not will in each case survive the Transactions and continue in full force and effect to the extent permitted by applicable Law, will not, for a period of six years from the Effective Time, be amended, repealed or otherwise modified for in a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under except, in the case of clauses (x) and (y), as required by applicable Law. Without limiting the foregoing, at the Effective Time, the Surviving Corporation will, and Parent will cause the Surviving Corporation to cause the certificate of incorporation or bylaws and by-laws of the Company in respect Surviving Corporation to include provisions for limitation of actions or omissions occurring at or prior liabilities of Indemnified Parties, indemnification, advancement of expenses and exculpation of the Indemnified Parties no less favorable to the Effective Time (including, without limitation, Indemnified Parties than as set forth in the transactions contemplated by Company Charter and Company Bylaws in effect on the date of this Agreement), unless such modification is which provisions will, for a period of six years from the Effective Time, not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnified Parties except as required by applicable lawLaw.
(b) From and after Prior to the Effective Time, the Company will and, if the Company is unable to, Parent agrees that it will indemnify and hold harmless each present and former director and officer of cause the Company, (when acting in such capacity) determined Surviving Corporation as of the Effective Time to obtain and fully pay for “tail” insurance policies with a claims period of at least six years from and after the Effective Time from the Company’s current insurance carrier or from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance and fiduciary liability insurance (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “CostsD&O Insurance”) incurred in connection for the persons who, as of the date of this Agreement, are covered by the Company’s existing D&O Insurance. Such “tail” insurance policies will have terms, conditions, retentions and levels of coverage at least as favorable as the Company’s existing D&O Insurance with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), in whole or in part based on or arising in whole or in part out of respect to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after Time (including in connection with this Agreement and the Transactions). Parent will cause the Surviving Corporation to maintain such “tail” insurance policies in full force and effect for their full term. If the Company and the Surviving Corporation for any reason fail to obtain such “tail” insurance policies as of the Effective Time, the Surviving Corporation will, and Parent will cause the Surviving Corporation to, continue to maintain in effect, at no expense to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL).
(c) Parent shall cause to be maintainedIndemnified Parties, for a period of not less than at least six (6) years from and after the Effective Time, the Company’s D&O Insurance in place as of the date of this Agreement with terms, conditions, retentions and levels of coverage at least as favorable as provided in the Company’s existing policies as of the date of this Agreement, or, if such insurance is unavailable, the Surviving Corporation will, and Parent will cause the Surviving Corporation to, purchase the best available D&O Insurance for such six-year period from an insurance carrier with the same or better credit rating as the Company’s current directors’ and officers’ liability insurance policy carrier with respect to the extent that it provides Company’s existing D&O Insurance with terms, conditions, retentions and with levels of coverage for events occurring prior to at least as favorable as provided in the Effective Time (the “D&O Insurance”) for all present and former directors and officers Company’s existing policies as of the Company or any Subsidiary thereof, so long as date of this Agreement; except that neither Parent nor the Surviving Corporation will be required to pay an aggregate premium therefor would not be for such insurance policies in excess of Four Million Dollars $3,500,000; and if the premiums of such insurance coverage exceed such amount, Parent or the Surviving Corporation will be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
($4,000,000c) The provisions of this Section 6.5 are (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage i) intended to be provided under any policy maintained for the benefit of the directors of, and officers of Parent will be enforceable by, each Indemnified Party, his or a separate policy provided her heirs and his or her representatives and (ii) in addition to, and not in substitution for or limitation of, any other rights to indemnification or contribution that any such Person may have by the same insurer. If the existing D&O Insurance expires, is terminated Contract or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premiumotherwise.
(d) In the event that Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and 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 assets to any Person, then, and in each such case, to the extent necessary, proper provision shall will be made so that the successors and assigns of Parent or and the Surviving Corporation, as the case may beapplicable, will assume all of the obligations thereof set forth in this Section 6.116.5.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 3 contracts
Samples: Merger Agreement (Agl Resources Inc), Merger Agreement (Southern Co), Merger Agreement
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective TimeTime for a period of six years, Parent agrees that it will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the CompanyCompany or any of its Subsidiaries and each other Person who, at the request or for the benefit of the Company or any of its Subsidiaries, is or was previously serving as a director or officer, or fiduciary (including an ERISA fiduciary) of any other Person (in each case, when acting in such capacity) ), determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), from and against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, claims, damages, penalties, amounts paid in settlement claims(including all interest, damages assessments and other charges) or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company or the applicable Subsidiary of the Company would have been permitted under the DGCL Delaware law and under its certificate of incorporation and bylaws or by-laws or other governing documents in effect on the date hereof of this Agreement to indemnify such Person (and Parent the Surviving Corporation shall also advance fees, costs and expenses (including attorney’s fees and disbursements) as incurred to the fullest extent permitted under applicable law Law, provided the Person 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 Person is not entitled to indemnification hereunder or thereunder) and provided further that all rights to indemnification in respect of any claim, action, suit, proceeding or investigation, in each case to the extent a claim in connection therewith has been asserted prior to the sixth anniversary of the Effective Time, shall continue until the disposition or resolution of such matter.
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 6.12, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof, but the DGCL)failure to so notify shall not relieve Parent or the Surviving Corporation of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the indemnifying party.
(c) For six years after the Effective Time, Parent shall cause to be maintainedmaintained in effect provisions in the Surviving Corporation’s certificate of incorporation and by-laws (or in such documents of any successor to the business of the Surviving Corporation) regarding elimination of liability of directors, for indemnification of directors, officers, employees, fiduciaries and agents and advancement of fees, costs and expenses that are no less advantageous to the intended beneficiaries than the corresponding provisions in existence on the date of this Agreement. From and after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to honor and comply with their respective obligations under any indemnification agreement with any Indemnified Party in effect as of (and disclosed to Parent prior to, including by way of making a period form of such agreement (including a list of signatories and beneficiaries) available to Parent) the date hereof), and not less than six amend, repeal or otherwise modify any such agreement in any manner that would adversely affect any right of any Indemnified Party thereunder.
(6d) years from Prior to the Effective Time, the Company shall, and if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay for “tail” insurance policies for the extension of the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies with a claims period of at least six years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time 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 policy (collectively, “D&O Insurance”) with benefits and levels of coverage no less favorable in any material respect to the extent that it provides coverage for events Indemnified Parties than 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 “D&O Insurance”) for all present and former directors and officers of transactions or actions contemplated hereby); provided, however, that in no event shall the Company or any Subsidiary thereof, so long as the expend for such policies an aggregate premium therefor would not be amount in excess of Four Million Dollars ($4,000,000) (250% of the annual premiums currently paid by the Company for such insurance. If the Company and the Surviving Corporation for any reason fail to obtain such “Maximum Premium”); provided that tail” insurance policies as of the Effective Time, the Surviving Corporation shall, and Parent mayshall cause the Surviving Corporation to, continue to maintain in lieu effect for a period of maintaining such existing at least six years from and after the Effective Time the D&O Insurance in place as provided above, cause of the date of this Agreement with benefits and levels of coverage no less favorable coverage in any material respect to be the Indemnified Parties than that provided under any policy maintained for in the benefit Company’s existing policies as of the directors date of this Agreement, or the Surviving Corporation shall, and officers of Parent or a separate policy provided by shall cause the same insurer. If the existing Surviving Corporation to, use reasonable best efforts to purchase comparable D&O Insurance expiresfor such six-year period with benefits and levels of coverage at least as favorable to the Indemnified Parties as provided in the Company’s existing policies as of the date of this Agreement), is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premiumprovided, Parent shall obtainhowever, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed shall Parent or the Maximum PremiumSurviving Corporation be required to expend for such policies an annual premium amount in excess of 250% of the annual premiums currently paid by the Company for such insurance; and, provided further that if the annual premium of such insurance coverage exceeds such amount, the Surviving Corporation shall obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(de) In the event Parent, If Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume all of the obligations set forth in this Section 6.116.12.
(ef) The provisions of this Section 6.11 6.12 are in addition intended to survive the rights that an Indemnified Party may have under the certificate consummation of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties.
(g) The rights of the Indemnified Parties under this Section 6.12 shall be in addition to any rights such Indemnified Parties may have under the certificate of incorporation or by-laws of the Company or any of its Subsidiaries, their heirs and their representativesor under any applicable Contracts or Laws.
Appears in 3 contracts
Samples: Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Ak Steel Holding Corp), Merger Agreement (Cleveland-Cliffs Inc.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of Until the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as fourth anniversary of the Effective Time (each, an Indemnified Party and, collectivelyand until resolution of any claims asserted prior to such fourth anniversary), the “Surviving Corporation shall, to the extent allowed by law and to the extent currently provided in the By-laws and Articles of Incorporation of Xxxxx, indemnify, defend and hold harmless each person who is as of the date hereof, or has been at any time prior to the date hereof, a director or officer of Xxxxx or any of its Subsidiaries (the "Indemnified Parties”), ") against any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, i) all losses, claims, damages, costs, expenses, liabilities or judgments or amounts that are paid in settlement claims, damages of or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), investigation based in whole or in part based on or arising in whole or in part out of matters the fact that such person is or was a director or officer of Xxxxx or any Subsidiary of Xxxxx, whether pertaining to any matter existing or occurring at or prior to the Effective Time, Time and whether asserted or claimed prior to, or at or after after, the Effective TimeTime ("Indemnified Liabilities") and (ii) 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 transactions contemplated hereby, in each case to the fullest full extent that the Company Xxxxx would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof New Mexico law to indemnify such Person person (and Parent shall also advance expenses as incurred subject to the fullest extent permitted under applicable law provided foregoing, the Person Surviving Corporation shall, in the event the Surviving Corporation determines in its reasonable discretion that such person would be entitled to indemnification hereunder, pay expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party; provided, however, that the person to whom the expenses are advanced provides must provide an undertaking (without delivering a bond or other security) to repay such advances advance if it is ultimately determined that such Person person is not entitled to indemnification as provided in Section 53-11-4.1 of the NMBCA). Without limiting the foregoing, in the event any such claim, action, suit, proceeding or investigation is brought against any Indemnified Parties (whether arising before or after the Effective Time), (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 pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received as heretofore provided; and (iii) after the Effective Time, the Surviving Corporation will use all reasonable efforts to assist in the vigorous defense of such matter, provided that the Surviving Corporation shall not be liable for any settlement of any claim effected without its written consent, which consent, however, shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification under this Section 6.10, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the DGCLSurviving Corporation (but the failure so to notify the Surviving Corporation shall not relieve it from any liability which it may have under this Section 6.10 except to the extent such failure prejudices the Surviving Corporation), and shall deliver to the Surviving Corporation the undertaking, if any, required by the NMBCA or this Agreement. The Surviving Corporation shall be liable for the fees and expenses hereunder with respect to only one law firm, in addition to local counsel in each applicable jurisdiction, to represent the Indemnified Parties as a group with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict between the positions of any two or more Indemnified Parties that would preclude or render inadvisable joint or multiple representation of such parties.
(b) For a period of four years after the Effective Time, the Surviving Corporation shall cause to be maintained in effect the current policies of directors' and officers' liability insurance maintained by Xxxxx (provided that the Surviving Corporation may substitute therefor other policies of at least the same coverage and amounts containing terms and conditions which are no less advantageous) with respect to claims arising from facts or events which occurred before or at the Effective Time; provided, however, that the Surviving Corporation shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 125% of the premiums paid as of the date hereof by Xxxxx for such insurance ("Bryan's Current Premium"), and if such premiums for such insurance would at any time exceed 125% of Bryan's Current Premium, then the Surviving Corporation shall cause to be maintained policies of insurance which, in the Surviving Corporation's good faith determination, provided the maximum coverage available at an annual premium equal to 125% of Bryan's Current Premium. Notwithstanding anything to the contrary contained elsewhere herein, the Surviving Corporation's indemnity agreement set forth above in Section 6.10(a) shall be limited to cover claims only to the extent that those claims are not covered under Bryan's current directors' and officers' insurance policies and the continuation or maintenance thereof as required by this Section 6.10(b) (or any substitute policies permitted by this Section 6.10(b)).
(c) Parent shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event Parent, the Surviving Corporation Buyer or any of their respective its successors or assigns (i) consolidates with or merges into any other Person person and shall 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 assets to any Personperson, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Buyer assume the obligations set forth in this Section 6.11section.
(ed) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses 6.10 (including reasonable fees and expenses of counseli) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified PartiesParty, their his heirs and their representativeshis 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 3 contracts
Samples: Merger Agreement (Bryan Steam Corp), Merger Agreement (Burnham Corp), Merger Agreement (Bryan Steam Corp)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify DSW and the Surviving Entity shall, to the fullest extent permitted by applicable Law, jointly and severally indemnify, defend and hold harmless harmless, and provide advancement of expenses to, each present and former director and officer of person who is now, or has been at any time prior to the Company, (when acting in such capacity) determined as of date hereof or who becomes prior to the Effective Time (eachTime, an Indemnified Party andofficer, collectively, director or employee of RVI or any of its Subsidiaries (the “RVI Indemnified Parties”), ) against any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, all losses, claims, damages, costs, expenses, liabilities or judgments or amounts that are paid in settlement claims, damages of or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), investigation based in whole or in part based on or arising in whole or in part out of matters existing the fact that such person is or occurring at was a director, officer or employee of RVI or any Subsidiary of RVI prior to the Effective Time, whether asserted or claimed prior to, or at or after after, the Effective TimeTime (including matters, acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby) to the fullest same extent that such persons are indemnified or have the Company would have been permitted under right to advancement of expenses as of the DGCL date of this Agreement by RVI pursuant to RVI’s Articles of Incorporation, Code of Regulations and its certificate of incorporation and bylaws indemnification agreements, in effect existence on the date hereof to indemnify such Person (with any present or former directors, officers or employees of RVI and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL)its Subsidiaries.
(cb) Parent DSW shall cause to be maintained, for purchase a period of not less than six (6) years from the Effective Time, the Company’s current “tail” directors’ and officers’ liability insurance policy for the persons who, as of the date of this Agreement or as of the Effective Time, are covered by RVI’s existing directors’ and officers’ liability insurance, with respect to claims arising from facts or events which occurred at or before the extent that it provides Effective Time, with coverage for events occurring prior to six years following the Effective Time (and with substantially the “D&O Insurance”) for all present same coverage and former directors amounts and officers of the Company or any Subsidiary thereof, so long terms and conditions as the aggregate premium therefor would not be in excess existing policies of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained maintained by RVI. The one-time premium payment for such tail policy shall not exceed $1,750,000 (such dollar amount, the remainder of “Maximum Premium”). To the extent the premium payment for such period by paying tail policy would exceed the Maximum Premium, provided that DSW shall acquire aggregate premiums payable by Parent coverage for the D&O Insurance pursuant maximum amount available on substantially equivalent terms for a cost equal to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(c) DSW and the Surviving Entity shall pay (as incurred) all expenses, including reasonable fees and expenses of counsel, which an indemnified person may incur in enforcing the indemnity and other obligations provided for in this Section 5.10.
(d) In the event ParentIf DSW, the Surviving Corporation Entity or any of their respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of person in such consolidation or merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or DSW and the Surviving CorporationEntity, as the case may be, shall assume the obligations set forth in this Section 6.115.10.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 5.10 are intended to be for the benefit of, and shall be enforceable by, each of the RVI Indemnified Parties, their Party and his or her heirs and their representativesrepresentatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.
Appears in 3 contracts
Samples: Merger Agreement (Retail Ventures Inc), Merger Agreement (DSW Inc.), Merger Agreement (Retail Ventures Inc)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation Parent and bylaws of the Surviving Corporation shall contain provisions Company agree that all rights to indemnification for liabilities, and all limitations with respect to indemnification no more restrictive thereto, existing in scope and no less favorable to the favor of any Indemnified Parties (Person, as defined below) as set forth provided in the certificate Company’s Certificate of incorporation Incorporation or Bylaws and bylaws of the Company on any indemnification agreement in effect at the date of this Agreementhereof, which provisions shall not be amendedsurvive the Merger and shall continue in full force and effect, repealed or otherwise modified without any amendment thereto, for a period of six (6) years after from the Effective Time to the fullest extent permitted by Law; provided, however, that in the event any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation Claim is asserted or bylaws of the Company made within such six-year period, all such rights, liabilities and limitations in respect of actions or omissions occurring at or prior any such Claim shall continue until disposition thereof; provided further that any determination required to be made with respect to whether an Indemnified Person’s conduct complies with the Effective Time (including, without limitationstandards set forth under the DGCL, the transactions contemplated Company’s Certificate of Incorporation or Bylaws or any such agreement, as the case may be, for purposes of the allowance of indemnification or advancement of expenses, shall be made by this Agreement), unless independent legal counsel selected by such modification is required by applicable lawIndemnified Person and reasonably acceptable to Parent.
(b) From and For six years after the Effective Time, Parent agrees that it will indemnify shall, and shall cause the Surviving Corporation to, indemnify, defend and hold harmless each present and former director and officer any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, employee or agent (an “Indemnified Person”) of the CompanyCompany or any Company Subsidiary against all losses, (when acting in such capacity) determined as of the Effective Time (eachclaims, an Indemnified Party anddamages, collectivelyliabilities, the “Indemnified Parties”), against any costs or and expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, losses and amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, actual or threatened action, suit, claim, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative investigation (each a “Claim”)) to the extent that any such Claim is based on, or arises out of: (i) the fact that such Indemnified Person is or was a director, officer, employee or agent of the Company or any Company Subsidiary or is or was serving at the request of the Company or any Company Subsidiary as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise; or (ii) this Agreement or any of the transactions contemplated hereby, in whole each case to the extent that any such Claim pertains to any matter or in part based on or arising in whole or in part out of matters fact arising, existing or occurring at or 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 fullest extent that the Company would have been permitted under the DGCL and its certificate DGCL, the Company’s Certificate of incorporation and bylaws Incorporation or Bylaws or any indemnification agreement in effect on at the date hereof which is set forth in Section 6.06 of the Company Disclosure Schedule, including provisions relating to indemnify advancement of expenses incurred in the defense of any such Claim. Without limiting the generality of the preceding sentence, in the event that any Claim is asserted against any Indemnified Person after the Effective Time, Parent shall, or shall cause the Surviving Corporation to, periodically advance to such Indemnified Person its legal and other expenses (including the cost of any investigation and Parent shall also advance expenses as preparation incurred in connection therewith), subject to the fullest extent permitted under applicable law provided the providing by such Indemnified Person to whom expenses are advanced provides of an undertaking to repay such advances if it is ultimately determined reimburse all amounts so advanced in the case of a final nonappealable determination by a court of competent jurisdiction that such Indemnified Person is not entitled to indemnification under the DGCL)be indemnified therefor.
(c) Parent or the Surviving Corporation shall cause to be maintained, maintain the Company’s existing directors’ and officers’ liability insurance policy (“D&O Insurance”) for a period of not less than six years after the Effective Time; provided, however, that Parent may substitute therefor policies of substantially similar coverage (including pursuant to Parent’s own policy) and amounts containing terms no less advantageous to such former directors or officers; provided further that, subject to the preceding proviso, if the existing D&O Insurance expires or is canceled during such period, Parent or the Surviving Corporation shall obtain substantially similar D&O Insurance; and provided further that neither Parent nor the Surviving Corporation shall be required to pay an annual premium for D&O Insurance in excess of 300% of the last annual premium paid by the Company prior to the date hereof, but in such case, shall purchase as much coverage as possible for such amount. Notwithstanding anything in this Section 6.06(c) to the contrary, Parent may fulfill its (and Surviving Corporation’s) obligations under this Section 6.06(c) by purchasing a D&O Insurance “tail” policy under the Company’s existing D&O Insurance, in either case which (i) has an effective term of six (6) years from the Effective Time, (ii) covers only those persons who are currently covered by the Company’s current directors’ D&O Insurance in effect as of the date hereof and officers’ liability insurance policy to the extent that it provides coverage only for events actions and omissions occurring on or prior to the Effective Time Time, and (the “D&O Insurance”iii) for all present contains terms with respect to coverage and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided amounts that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause are no less favorable coverage to be provided under any policy maintained for in the benefit of aggregate than those terms in the directors and officers of Parent or a separate policy provided by the same insurer. If the existing Company’s D&O Insurance expires, is terminated or canceled by on the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premiumdate hereof.
(d) In The obligations under this Section 6.06 shall not be terminated, amended or otherwise modified in such a manner as to adversely affect any Indemnified Person (or any other person who is a beneficiary under the event ParentD&O Insurance or the “tail” policy referred to in paragraph (c) above (and their heirs and representatives)) without the prior written consent of such affected Indemnified Person or other person who is a beneficiary under the D&O Insurance or the “tail” policy referred to in Section 6.06(c) (and their heirs and representatives). Each Indemnified Person or other persons who are beneficiaries under the D&O Insurance or the “tail” policy referred to in paragraph (c) above (and their heirs and representatives) are intended to be third party beneficiaries of this Section 6.06, with full rights of enforcement as if a party thereto. The rights of the Indemnified Persons (and other persons who are beneficiaries under the D&O Insurance or the “tail” policy referred to in Section 6.06(c) (and their heirs and representatives)) under this Section 6.06 shall be in addition to, and not in substitution for, any other rights that such persons may have under the Company’s Certificate of Incorporation or Bylaws or other equivalent organizational documents, any and all indemnification agreements of or entered into by the Company or any of the Company Subsidiaries, or applicable Law (whether at Law or in equity).
(e) If Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger, merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, then and in each either such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume the obligations of Parent or the Surviving Corporation, as applicable, set forth in this Section 6.116.06.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 3 contracts
Samples: Merger Agreement (Fremont Partners Lp), Merger Agreement (Square D Co), Merger Agreement (Juno Lighting Inc)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, to the fullest extent permitted under applicable Law and the Company’s Organizational Documents in effect as of the date of this Agreement, Parent agrees that it will indemnify shall cause (including by providing all necessary funding) the Surviving Corporation to (i) indemnify, defend and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), Parties against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with with, arising out of or otherwise related to any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)alleged Proceeding, in whole or in part based on or connection with, arising in whole or in part out of or otherwise related to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to based in whole or in part, or arising in whole or in part out of the fullest extent fact that he or she is or was a director or officer of the Company would have been permitted under or any of its Subsidiaries, including in connection with (A) the DGCL transactions contemplated by this Agreement and its certificate (B) actions to enforce this provision or any other indemnification or advancement right of incorporation any Indemnified Party, and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also ii) advance reasonable documented out-of- pocket expenses as incurred to the fullest extent permitted under applicable law in connection therewith (upon receipt from such Indemnified Party of a request therefor, accompanied by invoices or other relevant documentation); provided the that any Person to whom expenses are so advanced provides an undertaking to repay such advances if it is ultimately determined by final adjudication by the Chosen Courts that such Person is not entitled to indemnification such advanced expenses; provided, further, that any determination required to be made with respect to whether an Indemnified Party’s conduct complies with the standards set forth under applicable Law and the DGCLCompany’s Organizational Documents in effect as of the date of this Agreement shall be made by independent legal counsel selected by the Surviving Corporation and acceptable to the Indemnified Party (such acceptance not to be unreasonably conditioned, withheld or delayed).
(cb) Parent shall cause Prior to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current Company shall and, if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay the premium for “tail” insurance policies for the extension of (i) the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies, and (ii) the Company’s existing fiduciary liability insurance policies (collectively, “D&O Insurance”), in each case for a claims reporting or discovery period of the Tail Period with respect to any claim related to matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the transactions or actions contemplated by this Agreement) from the Company’s D&O Insurance carrier as of the date of this Agreement or one or more insurance carriers with the same or better credit rating as such carrier with terms, conditions, retentions and limits of liability that are at least as favorable to the insureds as the Company’s existing policies; provided, however, that in no event shall the premium amount for such policies exceed the amount set forth in Section 7.11(a) of the Company Disclosure Schedule; provided, further, that the Company shall give Parent a reasonable opportunity to participate in the selection of such “tail” insurance policy and the Company shall give reasonable and good faith consideration to any comments made by Parent with respect thereto. If the Company for any reason fails to obtain or Parent for any reason fails to cause to be obtained 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 the Tail Period the D&O Insurance in place as of the date of this Agreement with the Company’s D&O Insurance carrier as of the date of this Agreement or with or one or more insurance carriers with the same or better credit rating as such carrier with terms, conditions, retentions and limits of liability that are at least as favorable to the extent insureds as provided in the Company’s existing policies as of the date of this Agreement, or the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, purchase comparable D&O Insurance for the Tail Period with terms, conditions, retentions and limits of liability that it provides are at least as favorable as provided in the Company’s existing policies as of the date of this Agreement and from an insurance carrier with the same or better credit rating as the Company’s D&O Insurance carrier as of the date of this Agreement, in each case providing coverage with respect to any matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the transactions or actions contemplated by this Agreement); and provided, further, that if the cost of such insurance coverage exceeds such amount, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, obtain a policy with the greatest coverage available for events a cost not exceeding such amount.
(c) During the Tail Period, without the prior written consent of the Indemnified Party, all rights to indemnification and exculpation from liabilities for acts or omissions occurring prior to the Effective Time (and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the “D&O Insurance”) for all present Organizational Documents of the Company and former directors its Subsidiaries or any indemnification agreement between such Indemnified Party and officers of the Company or any Subsidiary thereofof its Subsidiaries, so long in each case, as in effect on the aggregate premium therefor would date of this Agreement, shall not be amended, restated, amended and restated, repealed or otherwise modified in excess any manner that would adversely affect any right thereunder of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining any such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum PremiumIndemnified Party.
(d) In the event Parent, If Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity Person of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume all the obligations set forth in this Section 6.117.11(a).
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel7.11(a) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and from and after the Effective Time shall be enforceable by, each of the Indemnified Parties, who shall be third-party beneficiaries of this Section 7.11(a).
(f) The rights of the Indemnified Parties under this Section 7.11(a) are in addition to any rights such Indemnified Parties may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable Contracts or Laws and nothing in this Agreement is intended to, shall be construed or shall release, waiver 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 heirs respective directors, officers or other employees (it being understood and their representativesagreed that the indemnification provided for in this Section 7.10(a) is not prior to or in substitution of any such claims under such policies).
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Benefitfocus, Inc.), Merger Agreement (Benefitfocus, Inc.), Merger Agreement (Benefitfocus, Inc.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will each of Meadow and the Surviving Company shall, jointly and severally, indemnify and hold harmless each present and former director and officer of Person who is now, or has been at any time prior to the Companydate hereof, (when acting in such capacity) determined as of or who becomes prior to the Effective Time a director or officer of Iris or any of its Subsidiaries (each, an Indemnified Party and, collectively, the “Indemnified PartiesPerson”), ) against any costs or all expenses (including reasonable attorneys’ fees and expensesfees), liabilities, losses, judgments, finesfines (including excise taxes and penalties arising under XXXXX), losses, and amounts paid in settlement claimssettlement, damages or liabilities (collectively, “Costs”) actually and reasonably incurred in connection with any claimthreatened, pending or completed action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”other than an action by or in the right of Xxxx), in whole arising out of or pertaining to the fact that the Indemnified Person is or was, or has agreed to become, a director or officer of Iris, or is or was serving, or has agreed to serve, at the request of Xxxx, as a director, officer, partner, employee or trustee of, or in part based on a similar capacity with, another corporation, partnership, joint venture, trust or arising in whole or in part out of matters existing or occurring at or prior to the Effective Timeother enterprise (including any employee benefit plan), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company Xxxx would have been permitted be required to indemnify such person under the DGCL and its DGCL, Iris’s certificate of incorporation and or bylaws (as in effect on as of the date hereof of this Agreement) or the D&O Indemnification Agreement with such person. Each Indemnified Person will be entitled to indemnify advancement of expenses (including attorneys’ fees) incurred in the defense of any such Person (action, suit or proceeding and Parent shall also advance expenses as incurred any appeal therefrom from each of Meadow and the Surviving Company to the fullest extent permitted that Iris would be required to advance expenses to such person under applicable law provided the certificate of incorporation or bylaws of Iris or the D&O Indemnification Agreement with such person, within 10 Business Days of receipt by Meadow or the Surviving Company from the Indemnified Person of a request therefor; provided, that any Indemnified Person to whom expenses are advanced provides an undertaking undertaking, to the extent required by the DGCL in the event that Xxxx was providing the advancement, to repay such advances if it is ultimately determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Person is not entitled to indemnification under applicable Law.
(b) Meadow shall cause all rights to exculpation, indemnification and advancement by Iris and its Subsidiaries existing in favor of the DGCL)Indemnified Persons for their acts and omissions as directors and officers of Iris or any of its Subsidiaries occurring prior to the Effective Time, as provided in Iris’s or its applicable Subsidiary’s Organizational Documents (as in effect as of the date of this Agreement) and as provided in any indemnification agreements between Iris and said Indemnified Persons (as such agreements are in effect as of the date of this Agreement) to survive the Merger and be observed by the Surviving Company to the fullest extent permitted by Delaware law for a period of six years from the date on which the Merger becomes effective, which provisions governing such rights shall not be amended, repealed, abrogated or otherwise modified in any manner that would adversely affect any Indemnified Persons.
(c) Parent shall cause to be maintained, for a period of not less than six (6) years from From and after the Effective Time, the Company’s current Meadow shall maintain directors’ and officers’ liability insurance policy policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to the extent that it provides coverage for events occurring prior Meadow. Prior to the Effective Time (the Time, Xxxx shall purchase a six year “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained tail policy” for the benefit existing policy of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained maintained by Iris as of the date of this Agreement in the form made available by Iris to Meadow prior to the date of this Agreement at an annualized premium not to exceed 300% of the annual premiums currently paid by Iris for the remainder such insurance. The costs of such period tail policy will be split evenly between Iris and Meadow, and the portion paid for by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum PremiumXxxxxx will be treated as a Transaction Expense of Meadow hereunder.
(d) In the event Parent, the Surviving Corporation Meadow or Iris 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, (iii) consummates any division transaction or (iv) engages in any similar transaction, then, and in each such case, to the extent necessary, proper provision Meadow and any of its successors and assigns shall be made so ensure that the successors and assigns of Parent Meadow or the Surviving CorporationCompany, as the case may be, shall assume the obligations set forth in this Section 6.115.13.
(e) If any Indemnified Person makes any claim for indemnification or advancement of expenses under this Section 5.13 that is denied by Xxxxxx and/or Iris or the Surviving Company, and a court of competent jurisdiction determines that the Indemnified Person is entitled to such indemnification or advancement of expenses, then Meadow, Iris or the Surviving Company shall pay the Indemnified Person’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Person in connection with pursuing his or her claims to the fullest extent permitted by law.
(f) The provisions of this Section 6.11 5.13 are intended to be in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees otherwise available to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity by law, charter, statute, bylaw or other obligations under this Section 6.11. The provisions of this Section 6.11 agreement, and shall survive the Merger and are intended to be operate for the benefit of, and shall be enforceable by, each of the Indemnified PartiesPersons, their heirs and their representatives.
Appears in 3 contracts
Samples: Merger Agreement (Infinity Pharmaceuticals, Inc.), Agreement and Plan of Merger (MEI Pharma, Inc.), Merger Agreement (Infinity Pharmaceuticals, Inc.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate In the event of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed any threatened or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any actual claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminalcriminal or administrative, administrative including any such claim, action, suit, proceeding or investigative investigation (each a “Claim”) in which any individual who is now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of HBI or any of the HBI Subsidiaries or who is or was serving at the request of HBI or any of the HBI Subsidiaries as a director, officer, employee, trustee or fiduciary of another Person (the “Indemnified Parties”), is, or is threatened to be, made a party based in whole or in part based on on, or arising in whole or in part out of, or pertaining to (i) the fact that he or she is or was a director or officer of matters existing HBI or occurring any of the HBI Subsidiaries or was serving at the request of the HBI or prior to any of the Effective TimeHBI Subsidiaries as a director, officer, employee, trustee or fiduciary of another Person or (ii) this Agreement or any of the transactions this Agreement contemplates, whether asserted or claimed prior to, at arising before or after the Effective Time, the parties shall cooperate and use their best efforts to defend against such Claim and respond thereto. From and after the Effective Time, FNB shall, and shall cause the Surviving Company to, (A) indemnify and hold harmless, as and to the fullest extent that currently provided under applicable Law, the Company would have been permitted under HBI Articles and the DGCL HBI Bylaws, each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses, including reimbursement for reasonable fees and its certificate expenses, including fees and expenses of incorporation legal counsel, and bylaws judgments, fines and amounts paid in effect on the date hereof to indemnify settlement in connection with any such Person threatened or actual Claim and (and Parent shall also B) advance expenses as incurred (including in advance of the final disposition of any Claim) by such Indemnified Party to the fullest extent permitted under by applicable law Law; provided that the Person Indemnified Party to whom expenses are advanced provides an undertaking (in a reasonable and customary form) if required by applicable Law to repay such advances if it is ultimately determined that such Person Indemnified Party is not entitled to indemnification.
(b) FNB and the Surviving Company agree that all rights to indemnification of liabilities, including advancement of expenses, and all limitations with respect thereto, existing in favor of any Indemnified Person, as provided under Section 6.7(a), shall survive the DGCL)Merger and shall continue in full force and effect, without any amendment thereto; provided, however, that any determination required to be made with respect to whether an Indemnified Party’s conduct complies with the standards set forth under applicable Law, the HBI Articles or the HBI Bylaws, as the case may be, shall be made by independent legal counsel, whose fees and expenses shall be paid by FNB and the Surviving Company, selected by such Indemnified Party and reasonably acceptable to FNB; and, provided further that nothing in this Section 6.7(b) shall impair any rights or obligations of any current or former director or officer of HBI or its Subsidiaries, including pursuant to the respective organizational documents of HBI, or its Subsidiaries, under applicable Law or otherwise.
(c) Parent Prior to the Effective Time, FNB shall cause to be maintained, obtain and thereafter maintain for a period of not less than six (6) years from following the Effective Time, directors’ and officers’ liability insurance and fiduciary liability insurance policies covering the CompanyIndemnified Parties who as of the Effective Time are covered by HBI’s current directors’ and officers’ liability insurance or fiduciary liability insurance policies, in respect of acts or omissions occurring at or prior to the Effective Time, including the transactions this Agreement contemplates, provided that the policies must be of at least the same coverage amounts (as set forth on Section 3.20 of the HBI Disclosure Schedule) and contain coverage terms and conditions and that are not less advantageous than such policy of HBI. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if a prepaid policy has been obtained prior to the Effective Time from an insurer or insurers selected by FNB in consultation with HBI that has or have an insurer financial strength rating by A.M. Best Co. of at least “A”, which policy provides the Indemnified Parties with coverage, from the Effective Time to the sixth (6th) anniversary of the Effective Time, including in respect of the transactions this Agreement contemplates, on terms that are no less advantageous to the Indemnified Parties than HBI’s directors’ and officers’ liability insurance policy existing immediately prior to the extent that it provides coverage for events occurring date of this Agreement. If such prepaid policies have been obtained prior to the Effective Time Time, then FNB shall maintain such policies in full force and effect and continue the obligations thereunder. However, in no event shall FNB be required to expend, on an annual basis, an amount in excess of 300% of the annual premium paid by HBI for such insurance (the “D&O InsuranceInsurance Amount”) on the date of this Agreement, and further provided that if FNB is unable to maintain or obtain the insurance called for all present and former directors and officers by this Section 6.7(c) as a result of the Company or any Subsidiary thereofpreceding provision, so long as FNB shall use its reasonable best efforts to obtain policies containing coverage amounts, terms and conditions that are the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained most advantageous for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, Indemnified Parties as is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, available for the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum PremiumAmount.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel6.7(d) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger Effective Time and are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party and his or her heirs and representatives. If the Surviving Company, or any of its successors or assigns, consolidates with or merges into any other entity and is not the continuing or surviving entity of such consolidation or merger, transfers all or substantially all of its assets or deposits to any other entity or engages in any similar transaction, then in each case, the Surviving Company will cause proper provision to be made so that the successors and assigns of the Indemnified Parties, their heirs and their representativesSurviving Company will expressly assume the obligations of the Surviving Company set forth in this Section 6.7(d).
Appears in 3 contracts
Samples: Merger Agreement (FNB Corp/Pa/), Merger Agreement (Howard Bancorp Inc), Merger Agreement (Howard Bancorp Inc)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain the provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of persons who at any time prior to the Indemnified Parties Effective Time were identified as prospective indemnitees under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify Acquiror shall cause the Surviving Corporation to indemnify, defend and hold harmless each the present and former director officers, directors and officer employees of the Company, Company and the Company Subsidiaries (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “"Indemnified Parties”), ") against any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, all losses, expenses, claims, damages, liabilities or amounts that are paid in settlement claimsof, damages with the approval of Acquiror (which approval shall not be unreasonably withheld), or liabilities (collectively, “Costs”) incurred otherwise in connection with with, any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative investigation (a “"Claim”"), based in whole or in part based on the fact that such person is or was such a director, officer or employee and arising in whole or in part out of matters existing actions or omissions occurring at or prior to the Effective TimeTime (including, whether asserted or claimed prior towithout limitation, at or after the Effective Timetransactions contemplated by this Agreement), to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred each case to the fullest extent permitted under applicable law provided Delaware Law (and shall pay expenses in advance of the Person final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Delaware Law, upon receipt from the Indemnified Party to whom expenses are advanced provides an of the undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCLcontemplated by Section 145(e) of Delaware Law).
(c) Parent Without limiting the foregoing, in the event any Claim is brought against any Indemnified Party (whether arising before or after the Effective Time) after the Effective Time: (i) the Indemnified Parties may retain its regularly engaged independent legal counsel as of the date of this Agreement, or other independent legal counsel satisfactory to them provided that such other counsel shall be reasonably acceptable to Acquiror, (ii) Acquiror shall cause the Surviving Corporation to pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received, and (iii) Acquiror shall cause the Surviving Corporation to use its reasonable efforts to assist in the vigorous defense of any such matter, provided that neither the Acquiror nor the Surviving Corporation shall be liable for any settlement of any Claim effected without the written consent of Acquiror, which consent shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification under this Section 7.7, promptly upon learning of any such Claim, shall notify the Acquiror and Surviving Corporation (although the failure so to notify the Acquiror and Surviving Corporation shall not relieve the Acquiror and Surviving Corporation from any liability which the Acquiror and Surviving Corporation may have under this Section 7.7, except to the extent such failure prejudices the Acquiror and Surviving Corporation), and shall deliver to the Acquiror and Surviving Corporation the undertaking contemplated by Section 145(e) of Delaware Law. The Indemnified Parties as a group may retain one law firm (in addition to local counsel) to represent them with respect to each such matter unless there is, under applicable standards of professional conduct (as reasonably determined by counsel to such Indemnified Parties) a conflict on any significant issue between the position of any two or more of such Indemnified Parties, in which event, an additional counsel as may be required may be retained by such Indemnified Parties.
(d) Acquiror shall cause to be maintained, maintained in effect for a period of not less than six (6) years from after the Effective Time, Time the Company’s current policies of directors’ ' and officers’ ' liability insurance policy and fiduciary liability insurance maintained by the Company with respect to the extent that it provides coverage for events matters occurring prior to the Effective Time Time; provided, however, that (i) Acquiror may substitute therefor policies of substantially the “D&O Insurance”same coverage containing terms and conditions that are substantially the same for the Indemnified Parties to the extent reasonably available and (ii) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would Acquiror shall not be required to pay an annual premium for such insurance in excess of Four Million Dollars two hundred percent ($4,000,000200%) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate last annual premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, paid prior to the extent necessarydate of this Agreement, proper provision but in such case shall be made so that the successors and assigns of Parent or the Surviving Corporation, purchase as the case may be, assume the obligations set forth in this Section 6.11much coverage as possible for such amount.
(e) The provisions of this This Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are 7.7 is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified PartiesParties referred to herein, their heirs and personal representatives and shall be binding on Acquiror and Merger Sub and the Surviving Corporation and their representativesrespective successors and assigns. Acquiror hereby guarantees the Surviving Corporation's obligations pursuant to this Section 7.7.
Appears in 3 contracts
Samples: Merger Agreement (Orion Network Systems Inc/New/), Merger Agreement (Loral Space & Communications LTD), Merger Agreement (Loral Space & Communications LTD)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate In the event of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed any threatened or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any actual claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminalcriminal or administrative, administrative including, without limitation, any such claim, action, suit, proceeding or investigative investigation in which any individual who is now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of First National Bankshares or any of its Subsidiaries, or who is or was serving at the request of First National Bankshares or any of its Subsidiaries as a director or officer of another person, including any entity specified in the First National Bankshares Disclosure Schedule (a the “ClaimIndemnified Parties”), is, or is threatened to be, made a party based in whole or in part based on on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was a director or officer of matters existing First National Bankshares or occurring at any of its Subsidiaries or prior to any entity specified in the Effective TimeFirst National Bankshares Disclosure Schedule or any of their respective predecessors or (ii) this Agreement or any of the transactions contemplated hereby, whether in any case asserted or claimed prior to, at arising before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that after the fullest extent that the Company would have been permitted under the DGCL Effective Time, Fifth Third shall indemnify and its certificate of incorporation hold harmless, as and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under by law, each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reimbursement for reasonable 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 upon receipt of any undertaking required by applicable law provided the Person to whom expenses are advanced provides an undertaking to repay law), judgments, fines and amounts paid in settlement in connection with any such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL)threatened or actual claim, action, suit, proceeding or investigation.
(cb) Parent Fifth Third shall use its reasonable best efforts to cause the individuals serving as officers and directors of First National Bankshares, its Subsidiaries or any entity specified in the First National Bankshares Disclosure Schedule immediately prior to the Effective Time to be maintained, covered for a period of not less than six three (63) years from the Effective Time, Time by the Company’s current directors’ and officers’ liability insurance policy maintained by First National Bankshares (provided that Fifth Third may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are not less advantageous than such policy) with respect to the extent that it provides coverage for events acts or omissions occurring prior to the Effective Time which were committed by such officers and directors in their capacity as such; provided that in no event shall Fifth Third be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by First National Bankshares (which current amount is set forth in Section 6.9 of the First National Bankshares Disclosure Schedule) for such insurance (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum PremiumInsurance Amount”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(dc) In the event Parent, the Surviving Corporation Fifth Third or any of their respective its successors or assigns (i) consolidates with or merges into any other Person 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 Personperson, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Fifth Third assume the obligations set forth in this Section 6.116.9.
(ed) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 6.9 shall survive the Merger Effective Time and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their Party and his or her heirs and their representatives.
Appears in 3 contracts
Samples: Merger Agreement (First National Bankshares of Florida Inc), Merger Agreement (Fifth Third Bancorp), Agreement and Plan of Merger (Fifth Third Bancorp)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will the Surviving Entity shall indemnify and hold harmless and shall advance expenses as incurred, in each case, to the fullest extent permitted by applicable law, Flagstar Charter, Flagstar Bylaws and the governing or organizational documents of any Flagstar Subsidiary, each present and former director director, officer or employee of Flagstar and officer of the Companyits Subsidiaries (in each case, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Flagstar Indemnified Parties”), ) against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (investigative, whether arising before or after the Effective Time, arising out of, or pertaining to, the fact that such person is or was a “Claim”)director, in whole officer or in part based on employee of Flagstar or arising in whole any of its Subsidiaries or in part out is or was serving at the request of matters Flagstar or any of its Subsidiaries as a director or officer of another person and pertaining to matters, acts or omissions existing or occurring at or prior to the Effective Time, whether asserted including matters, acts or claimed prior toomissions occurring in connection with the approval of this Agreement and the transactions contemplated by this Agreement; provided, at or after that in the Effective Timecase of advancement of expenses, to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person any Flagstar Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person Flagstar Indemnified Party is not entitled to indemnification under indemnification. The Surviving Entity shall reasonably cooperate with Flagstar Indemnified Parties, and Flagstar Indemnified Parties shall reasonably cooperate with the DGCL)Surviving Entity, in the defense of any such claim, action, suit, proceeding or investigation.
(cb) Parent shall cause to be maintained, for For a period of not less than six (6) years from after the Effective Time, the Company’s Surviving Entity shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance policy maintained by Flagstar (provided, that the Surviving Entity may substitute therefor policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions that are no less advantageous to the extent insured) with respect to claims against the present and former officers and directors of Flagstar or any of its Subsidiaries arising from facts or events which occurred at or before the Effective Time (including the approval of this Agreement and the transactions contemplated by this Agreement); provided, however, that it provides the Surviving Entity shall not be obligated to expend, on an annual basis, an amount in excess of 300% of the current annual premium paid as of the date hereof by Flagstar for such insurance (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then the Surviving Entity shall cause to be maintained policies of insurance which, in the Surviving Entity’s good faith determination, provide the maximum coverage for events occurring available at an annual premium equal to the Premium Cap. In lieu of the foregoing, Flagstar, in consultation with, but only upon the consent of, NYCB, may (and at the request of NYCB, Flagstar shall use its reasonable best efforts to) obtain at or prior to the Effective Time a six (the 6)-year “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such tail” policy under Flagstar’s existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance policy providing equivalent coverage to that can described in the preceding sentence if and to the extent that the same may be obtained for an amount that, in the remainder aggregate, does not exceed the Premium Cap.
(c) The obligations of such period by paying the Maximum PremiumSurviving Entity, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to NYCB or Flagstar under this Section 6.11(c) 6.7 shall not be terminated or modified after the Effective Time in no event exceed a manner so as to adversely affect any Flagstar Indemnified Party or any other person entitled to the Maximum Premiumbenefit of this Section 6.7 without the prior written consent of the affected Flagstar Indemnified Party or affected person.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 6.7 shall survive the Merger Effective Time and are intended to be for the benefit of, and shall be enforceable by, each Flagstar Indemnified Party and his or her heirs and representatives. If the Surviving Entity or any of its successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving entity of such consolidation or merger, or (ii) transfers all or substantially all of its assets or deposits to any other person or engages in any similar transaction, then in each such case, the Surviving Entity will cause proper provision to be made so that the successors and assigns of the Indemnified Parties, their heirs and their representativesSurviving Entity will expressly assume the obligations set forth in this Section 6.7.
Appears in 2 contracts
Samples: Merger Agreement (Flagstar Bancorp Inc), Merger Agreement (New York Community Bancorp Inc)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will shall and shall cause the Surviving Corporation and its Subsidiaries to, indemnify and hold harmless each present and former person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer or director and officer of the Company, Company or any of its Subsidiaries (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “D&O Indemnified Parties”), ) against any costs or and all losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs, and expenses (including reasonable attorneys’ fees fees, costs, and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) other reasonable and documented out-of-pocket expenses incurred in connection with investigating, preparing, or defending the foregoing and including any liabilities, fees, costs or other out-of-pocket expenses incurred in enforcing rights under this Agreement) arising out of or related to any threatened or actual claim, action, suit, proceeding proceeding, or investigationinvestigation based on, actual arising out of or threatened, whether civil, criminal, administrative or investigative (a “Claim”)related to, in whole or in part based on part, any action or arising omission taken or foregone in whole such D&O Indemnified Party’s position as a director or in part out officer of matters the Company or any of its Subsidiaries and pertaining to any matter existing or occurring at or prior to the Effective Time, Time and whether asserted or claimed prior to, or at or after after, the Effective TimeTime (the “D&O Indemnified Liabilities”), including all D&O Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or related to this Agreement or the transactions contemplated hereby, in each case to the fullest full extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person Applicable Law (and Parent shall, or shall also cause the Surviving Corporation or its Subsidiaries to, pay expenses in advance expenses as incurred of the final disposition of any such action or proceeding to each D&O Indemnified Party; provided, that in connection with any such advancement of expenses, the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides D&O Indemnified Party shall execute an undertaking to repay such advances if to the Surviving Corporation or its subsidiaries any amount for which it is ultimately determined by a court of competent jurisdiction that such Person is D&O Indemnified Party would not have been entitled to indemnification under applicable law or the DGCLprovisions of this Agreement). Subject to and without limiting the foregoing, in the event any such claim, action, suit, proceeding or investigation is brought against any D&O Indemnified Party (whether arising before, on or after the Closing Date), (i) the D&O Indemnified Party may retain counsel satisfactory to it and reasonably satisfactory to Parent, and Parent shall cause the Surviving Corporation or its Subsidiaries to, pay all fees and expenses of such counsel for the D&O Indemnified Party promptly as statements therefor are received and (ii) the Surviving Corporation, its Subsidiaries and each D&O Indemnified Party will use all reasonable efforts to assist in the vigorous defense of any such matter; provided, that none of the Surviving Corporation, any of its Subsidiaries or Parent shall be liable for any settlement or consent decree effected without its prior written consent, which consent shall not be unreasonably withheld. Any D&O Indemnified Party wishing to claim indemnification under this Section 6.10 shall notify Parent upon learning of any such claim, action, suit, proceeding or investigation (but the failure so to notify shall not relieve a party from any liability which it may have under this Section 6.10 except to the extent such failure prejudices Parent, the Surviving Corporation or its Subsidiaries). The parties hereto agree that all rights to indemnification hereunder, including provisions relating to advances of expenses incurred in defense of any such action or suit, existing in favor of the D&O Indemnified Parties with respect to matters occurring through the Closing Date shall continue in full force and effect from and after the Closing Date; provided, however, that all rights to indemnification in respect of any D&O Indemnified Liabilities asserted or made in writing to the Surviving Corporation within such period shall continue until the disposition of such D&O Indemnified Liabilities.
(cb) Parent shall cause to be maintained, for a period of not less than For six (6) years from the Effective Time, Parent shall cause the Company’s current directorsSurviving Corporation and its Subsidiaries to maintain, if available, and cause the Surviving Corporation to pay the premiums associated with, officers’ and officersdirectors’ liability insurance policy covering the persons who are presently covered by officers’ and directors’ liability insurance policies (copies of which have heretofore been delivered to the extent that it provides coverage for events Parent) with respect to actions and omissions occurring prior to the Effective Time Time, providing coverage not less favorable in the aggregate than provided by such insurance in effect on the date hereof; provided, however, that in no event shall the Surviving Corporation be obligated to expend in order to obtain or maintain insurance coverage pursuant to this Section 6.10(b) any amount per annum in excess of 300% of the aggregate premiums currently paid or payable by the Company in 2013 (on an annualized basis) (which aggregate premiums currently paid or payable by the “D&O Insurance”Company in 2013 (on an annualized basis) for all present and former directors and officers are set forth on Section 6.10(b) of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000Disclosure Letter) for such purpose (the “Maximum Premium”); provided provided, that Parent may, in lieu of maintaining such existing D&O Insurance as provided abovethe foregoing insurance coverage, cause at any time after the date hereof, the Company may, or Parent may direct the Company to, purchase a six (6)-year prepaid “tail” policy that provides coverage no less favorable to the D&O Indemnified Parties than the coverage to be provided under any policy maintained for described in this Section 6.10(b); provided, further, that the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu cost of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) “tail” policy shall in no event not exceed the Maximum Premium.
(c) Parent covenants, for itself and its successors and assigns, that, after the Effective Time, it and they shall not institute any action or proceeding in any court or before any administrative agency or before any other tribunal against any of the current directors of the Company and its Subsidiaries, in their capacity as such, with respect to any liabilities, actions, or causes of actions, judgments, claims, or demands of any nature or description (consequential, compensatory, punitive, or otherwise), in each case to the extent resulting from their approval of this Agreement or the transactions contemplated hereby.
(d) In During the event Parentsix (6)-year period following the Closing Date, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be amend, restate or otherwise modify the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers or conveys all or substantially all provisions of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws incorporation or agreements of or with the Company or any of its Subsidiaries bylaws with respect to indemnification of and expense advancement or under applicable law. Parent agrees reimbursement to pay all costs and expenses (including reasonable fees and expenses of counsel) D&O Indemnified Parties in a manner that may be incurred by adversely affects any D&O Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representativesParty.
Appears in 2 contracts
Samples: Merger Agreement (Akorn Inc), Merger Agreement (Hi Tech Pharmacal Co Inc)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect All rights to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified exculpation from Liabilities for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any present or former director, officer or employee of the Company or any of its Subsidiaries (including, without limitationcollectively, the transactions contemplated by this Agreement)“Indemnified Parties”) as provided in the certificate of incorporation or bylaws or comparable governing documents of the Company or of any Subsidiary of the Company or any indemnification agreement between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall not be amended, unless repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such modification is required by applicable lawIndemnified Party.
(b) From and after the Effective Time, to the fullest extent permitted under applicable Law, Parent agrees that it will shall cause the Surviving Corporation to, or will, indemnify and hold harmless each present (and former director and officer of Parent or the CompanySurviving Corporation, (when acting in such capacityas the case may be, shall also advance expenses to) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) Liabilities incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatenedActions, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring related to such Indemnified Parties’ service as a director, officer or employee of the Company or its Subsidiaries or services performed by such persons at the request of the Company or its Subsidiaries at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including the transactions contemplated by this Agreement, to the fullest extent that the Company would have been permitted under the DGCL and its certificate provided as of incorporation and bylaws in effect on the date hereof in the certificate of incorporation, bylaws, comparable governing documents or existing contractual arrangements of the Company or its Subsidiaries; provided, that any person to indemnify such Person (and Parent shall also advance expenses as incurred whom any funds are advanced pursuant to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an foregoing must provide a written undertaking to repay such advances if it is ultimately finally determined by a body of competent authority that such Person person is not entitled to indemnification under the DGCL)indemnification.
(c) Parent shall cause Prior to be maintained, for a period of not less than six (6) years from the Effective Time, the Company may, and, if the Company fails to do so, Parent shall cause the Surviving Corporation to, obtain and fully pay the premium for the extension of (i) the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ 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 policy and fiduciary liability 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 extent Company or any of its Subsidiaries by reason of him or her serving in such capacity that it provides coverage for events occurring existed or occurred at or prior to the Effective Time (including in connection with this Agreement or the “D&O Insurance”) for all present and former directors and officers of transactions or actions contemplated hereby); provided, that in no event shall the Company or any Subsidiary thereof, so long as the aggregate Surviving Corporation expend for such policies pursuant to this sentence an annual premium therefor would not be amount in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit 300% of the directors and officers of Parent or a separate policy provided last annual premiums currently paid by the same insurer. If the existing D&O Insurance expiresCompany for such insurance; provided, is terminated or canceled by the insurer or further, that if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu annual premiums of such D&O Insuranceinsurance coverage exceed such amount, the maximum directors’ and officers’ liability Company or Surviving Corporation shall obtain as much comparable insurance coverage that can be obtained as reasonably possible for the remainder of a cost not exceeding such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premiumamount.
(d) In the event Parent, If Parent or the Surviving Corporation or any of their respective successors or assigns shall (i) consolidates consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys transfer all or substantially all of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume all of the obligations set forth in this Section 6.117.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 7.11 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives. The obligations under this Section 7.11 shall not be terminated or modified without the consent of such affected Indemnified Parties.
(f) The rights of the Indemnified Parties under this Section 7.11 shall be in addition to any rights such Indemnified Parties may have under any applicable Contracts or Laws.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Sigma Aldrich Corp)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will Acquiror shall indemnify and hold harmless each present and former director and director, officer or employee of the CompanyCompany and Acquired Subsidiaries (in each case, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “D&O Indemnified Parties”), ) against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative investigative, whether arising before or within six (a “Claim”)6) years after the Effective Time, in whole or in part based on or arising in whole or in part out of the fact that such person is or was a director, officer or employee of the Company or any of the Acquired Subsidiaries and pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after including the Effective Time, transactions contemplated by this Agreement to the fullest same extent that as such persons are indemnified as of the date of this Agreement by any of the organizational or governing documents of the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws or any Acquired Subsidiary in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined of this Agreement, provided, however, that such Person is Acquiror will not entitled to indemnification be liable under the DGCL).
(c) Parent shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy foregoing indemnification provision to the extent that any such costs or expenses, judgments, fines, losses, damages or liabilities is found in a final judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful malfeasance of any such director, officer or employee of the Company or Acquired Subsidiaries.
(b) To the extent it provides coverage for events occurring is available, Acquiror shall obtain at or prior to the Effective Time (a six-year “tail” prepaid policy under the “D&O Insurance”) for all present and former existing directors and officers insurance policy of the Company or any an Acquired Subsidiary thereofcovering the claims described in Section 7.12(a); provided, so long as the aggregate premium therefor would however, that Acquiror shall not be obligated to pay an aggregate amount for such prepaid policy in excess of Four Million One Hundred Fifty Thousand Dollars ($4,000,000) (the “Maximum Premium”150,000); , but provided further, that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision Acquiror shall be made so that the successors and assigns of Parent or the Surviving Corporation, required to obtain such “tail” prepaid policy for as the case may be, assume the obligations set forth in this Section 6.11long a term as possible while not expending greater than One Hundred Fifty Thousand Dollars ($150,000).
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 2 contracts
Samples: Merger Agreement (Midland States Bancorp, Inc.), Merger Agreement (Midland States Bancorp, Inc.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will shall indemnify and hold harmless and shall advance expenses as incurred, in each case to the fullest extent permitted by applicable law, the Company Certificate of Incorporation, the Company Bylaws and the governing or organizational documents of any Company Subsidiary, and any indemnification agreements in existence as of the date of this Agreement and disclosed in Section 6.7(a) of the Company Disclosure Schedule, each present and former director and or officer of the Company, Company and its Subsidiaries (in each case when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Company Indemnified Parties”), ) against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole whether arising before or in part based on or after the Effective Time, arising in whole or in part out of matters or pertaining to the fact that such person is or was a director or officer of Company or any of its Subsidiaries or is or was serving at the request of Company or any of its Subsidiaries as a director or officer of another person and pertaining to matters, acts or omissions existing or occurring at or prior to the Effective Time, whether asserted including matters, acts or claimed prior toomissions occurring in connection with the approval of this Agreement and the transactions contemplated by this Agreement; provided that in the case of advancement of expenses, at or after the Effective Time, to the fullest extent that the any Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person Company Indemnified Party is not entitled to indemnification. Parent shall reasonably cooperate with the Company Indemnified Parties, and the Company Indemnified Parties shall reasonably cooperate with Parent, in the defense of any such claim, action, suit, proceeding or investigation. Without limiting the indemnification under and other rights provided in this clause (a), all rights to indemnification and all limitations on liability existing in favor of the DGCL)Company Indemnified Parties as provided in any indemnification agreement in existence as on the date of this Agreement shall survive the Merger and shall continue in full force and effect to the fullest extent permitted by law, and shall be honored by Surviving Entity and its Subsidiaries or their respective successors as if they were the indemnifying party thereunder, without any amendment thereto.
(cb) For a period of six (6) years after the Effective Time, Parent shall cause to be maintained, for a period maintained in effect the current policies of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy maintained by Company (provided that Parent may substitute therefor policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions that are no less advantageous to the extent insured) with respect to claims against the Company Indemnified Parties arising from facts or events which occurred at or before the Effective Time (including the approval of the transactions contemplated by this Agreement); provided that it provides Parent shall not be obligated to expend, on an annual basis, an amount in excess of 300% of the current annual premium paid as of the date of this Agreement by Company for such insurance (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then Parent shall cause to be maintained policies of insurance which, in Parent’s good faith determination, provide the maximum coverage for events occurring available at an annual premium equal to the Premium Cap. In lieu of the foregoing, Parent or, with the prior consent of Parent, Company may (and if so requested by Parent, Company shall use its reasonable best efforts to) obtain at or prior to the Effective Time a six (the 6)-year “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such tail” policy under Company’s existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance policy providing equivalent coverage to that can described in the preceding sentence if and to the extent that the same may be obtained for an amount that, in the remainder aggregate, does not exceed the Premium Cap.
(c) The obligations of such period by paying the Maximum Premium, provided that aggregate premiums payable by Company or Parent for the D&O Insurance pursuant to under this Section 6.11(c) 6.7 shall not be terminated or modified after the Effective Time in no event exceed a manner so as to adversely affect any Company Indemnified Party or any other person entitled to the Maximum Premiumbenefit of this Section 6.7 without the prior written consent of the affected Company Indemnified Party or affected person.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 6.7 shall survive the Merger Effective Time and are intended to be for the benefit of, and shall be enforceable by, each of the Company Indemnified Parties, their Party and his or her heirs and their representatives. If Parent or any of its successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving entity of such consolidation or merger or (ii) transfers all or substantially all its assets or deposits to any other person or engages in any similar transaction, then in each such case, Parent will cause proper provision to be made so that the successors and assigns of Parent will expressly assume the obligations set forth in this Section 6.7.
Appears in 2 contracts
Samples: Merger Agreement (Firstsun Capital Bancorp), Merger Agreement (HomeStreet, Inc.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, each of Parent agrees that it will and the Surviving Corporation shall jointly and severally: (i) indemnify and hold harmless each present and former individual who served as a director and and/or officer of the Company, (when acting in such capacity) determined as Company or any of its Subsidiaries prior to the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”) to the fullest extent authorized or permitted by Delaware law, as now or hereafter in effect, in connection with any Claim and any judgments, fines (including excise taxes), against any costs or expenses penalties and amounts paid in settlement (including reasonable attorneys’ fees all interest, assessments and expenses), other charges paid or payable in connection with or in respect of such judgments, fines, losses, penalties or amounts paid in settlement claims, damages or liabilities (collectively, “Costs”settlement) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL resulting therefrom; and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL).
(c) Parent shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event Parent, 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 or conveys all or substantially all promptly pay on behalf of its properties and assets or, within thirty (30) days after any request for advancement, advance to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs to the fullest extent authorized or permitted by Delaware law, as now or hereafter in effect, any Expenses incurred in defending, serving as a witness with respect to or otherwise participating in any Claim in advance of the final disposition of such Claim, including payment on behalf of or advancement to the Indemnified Party of any Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to such indemnification and/or advancement, in each case without the requirement of any bond or other security, but in the case of advancement of Expenses upon receipt of an undertaking, to the extent required by applicable Law, from such Indemnified Party to repay such advanced Expenses if it is determined by a court of competent jurisdiction in a final order that such Indemnified Party was not entitled to indemnification hereunder with respect to such Expenses. In the event any Claim is brought against any Indemnified Party, Parent and their representatives.the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter, provided that neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Claim (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent the claimant seeks any non-monetary relief from such Indemnified Party, which consent will not be unreasonably withheld. The indemnification and advancement obligations of Parent and the Surviving Corporation pursuant to this Section 5.09(a) shall extend to acts or omissions occurring at or before the Effective Time and any Claim relating thereto (including with respect
Appears in 2 contracts
Samples: Merger Agreement (Viking Holdings LLC), Merger Agreement (Virtual Radiologic CORP)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, each of Parent agrees that it will and the Surviving Company shall jointly and severally: (i) indemnify and hold harmless each present and former individual who served as a director and or officer of the Company, (when acting in such capacity) determined as of Company or its Subsidiaries prior to the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”) (in such Person’s capacity as such and not as shareholders of the Company or any of its Subsidiaries) to the fullest extent required, authorized or permitted by Minnesota law, as now or hereafter in effect, in connection with any Claim (as defined below) and any judgments, fines (including excise taxes), against any costs or expenses penalties and amounts paid in settlement (including reasonable attorneys’ fees all interest, assessments and expenses), other charges paid or payable in connection with or in respect of such judgments, fines, losses, penalties or amounts paid in settlement claimssettlement) resulting therefrom; and (ii) promptly pay on behalf of or, damages within thirty (30) days after any request for advancement, advance to each of the Indemnified Parties, to the fullest extent required, authorized or liabilities permitted by Minnesota law, as now or hereafter in effect, any Expenses (collectively, “Costs”as defined below) incurred in defending, serving as a witness with respect to or otherwise participating in any Claim in advance of the final disposition of such Claim, including payment on behalf of or advancement to the Indemnified Party of any Expenses incurred by such Indemnified Party in connection with enforcing any claimrights with respect to such indemnification and/or advancement, in each case without the requirement of any bond or other security, but in the case of advancement of Expenses upon receipt of an undertaking, to the extent required by applicable law, from such Indemnified Party to repay such advanced Expenses if it is determined by a court of competent jurisdiction in a final order that such Indemnified Party was not entitled to indemnification hereunder with respect to such Expenses. In the event any Claim is brought against any Indemnified Party, Parent and the Surviving Company shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter, provided that neither Parent nor the Surviving Company shall settle, compromise or consent to the entry of any judgment in any Claim (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent the claimant seeks any non-monetary relief (including any admission of liability or guilt) from such Indemnified Party. Notwithstanding the foregoing, an Indemnified Party shall be entitled to control the defense of any action, suit, investigation or proceeding with counsel of its own choosing reasonably acceptable to Parent and Parent and the Surviving Company shall cooperate in the defense thereof; provided, that Parent shall not be liable for the fees of more than one counsel for all Indemnified Parties, other than local counsel, unless a conflict of interest shall be caused thereby. The indemnification and advancement obligations of Parent and the Surviving Company pursuant to this Section 7.6(a) shall extend to acts or omissions occurring at or before the Effective Time and any Claim relating thereto (including with respect to any acts or omissions occurring in connection with the approval of this Agreement by the Company Board and the Company’s shareholders and the consummation of the transactions contemplated hereby and any Claim relating thereto) and all rights to indemnification and advancement conferred hereunder shall continue as to an individual who has ceased to be a director or officer of the Company or its Subsidiaries at or prior to the Effective Time and shall inure to the benefit of such individual’s heirs, executors and personal and legal representatives. As used in this Section 7.6(a), (A) the term “Claim” means any threatened, asserted, pending or completed action, suit or proceeding, or any inquiry or investigation, actual whether instituted by the Company, any Governmental Entity or threatenedany other party, or any other matter for which indemnification is required pursuant to Section 302A.521 of the MBCA, that any Indemnified Party in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative administrative, investigative or investigative (a “Claim”)other, in whole including any arbitration or in part based on or other alternative dispute resolution mechanism, arising in whole or in part out of or pertaining to matters existing that relate to such Indemnified Party’s duties or occurring service as a director or officer of the Company, any of its Subsidiaries, any employee benefit plan maintained by any of the foregoing at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL Time and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL).
(c) Parent shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be at the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with request the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay Subsidiaries; and (B) the term “Expenses” means reasonable attorneys’ fees and all costs other costs, expenses and expenses obligations (including reasonable fees experts’ fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and expenses of counselbinding costs, as well as telecommunications, postage and courier charges) that may paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to investigate, defend, be incurred by a witness in or participate in, any Indemnified Party in successfully enforcing the indemnity or other obligations under Claim for which indemnification is authorized pursuant to this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended 7.6(a), including any action relating to be a claim for the benefit of, and shall be enforceable by, each of the indemnification or advancement brought by an Indemnified Parties, their heirs and their representativesParty.
Appears in 2 contracts
Samples: Merger Agreement (Digirad Corp), Agreement and Plan of Merger (ATRM Holdings, Inc.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate Each of incorporation Huya and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreementagrees that, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From from and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of DouYu or its Subsidiaries (each, an Indemnified Party and, collectively, the “Indemnified Parties”), ) against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring related to such Indemnified Parties’ service as a director or officer of DouYu or its Subsidiaries or services performed by such persons at the request of DouYu or its Subsidiaries at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including, for the avoidance of doubt, in connection with (i) the transactions contemplated by this Agreement and (ii) actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party; provided that such indemnification shall be subject to any limitation imposed from time to time under applicable Law. The Articles of Association will contain provisions with respect to rights to indemnification, advancement of expenses and limitations on, or exculpation from, liabilities, for acts or omissions that are at least as favorable to the fullest extent that directors, officers or employees of DouYu as those contained in the Company would have been permitted under the DGCL DouYu Memorandum and its certificate Articles of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred Association, except to the fullest extent permitted under prohibited by the Cayman Companies Law or any other applicable law provided Law, which provisions will not be amended, repealed or otherwise modified for a period of six (6) years from the Person to whom expenses are advanced provides an undertaking to repay Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties, unless such advances if it modification is ultimately determined that such Person is not entitled to indemnification under the DGCL).
(c) Parent required by Law. Huya shall, and shall cause to be maintainedthe Surviving Corporation to, for a period of not less than six (6) years from the Effective Time, honor and fulfill in all respects the Companyobligations of DouYu, to the fullest extent permitted by Law, under the indemnification agreements between DouYu and the Indemnified Parties as in effect on the date hereof arising out of or related to such Indemnified Parties’ service as a director or officer of DouYu or its Subsidiaries in such capacity or services performed by such persons at the request of DouYu or its Subsidiaries at or prior to the Effective Time.
(b) Huya or the Surviving Corporation shall have the right, but not the obligation, to assume and control the defense of any threatened or actual litigation, claim or proceeding relating to any acts or omissions covered under this Section 7.6 (each, a “Claim”) unless there is a conflict of interest between Huya and the Surviving Corporation, on the one hand, and the Indemnified Party, on the other (for the avoidance of doubt, conflict of interest shall be deemed to exist in the event of any threatened or actual litigation, claim or proceeding relating to the transactions contemplated by this Agreement), but in any event, no such Claim shall be settled or compromised without Huya’s current prior written consent (such consent not to be unreasonably withheld, conditioned or delayed); provided, that none of Huya or the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any such Claim for which indemnification has been sought by an Indemnified Party hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim or such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. Each of Huya, the Surviving Corporation and the Indemnified Parties shall cooperate in the defense of any Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(c) For a period of six (6) years after the Effective Time, Huya shall cause the Surviving Corporation to maintain DouYu’s existing policies of directors’ and officers’ liability insurance policy for the benefit of those persons who are covered by such policies at the Effective Time (or Huya may substitute therefor policies of at least the same coverage with respect to the extent that it provides coverage for events matters occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”Time); provided that Parent may, in lieu no event shall the Surviving Corporation be required to expend pursuant to this Section 7.6(c) more than an amount per year equal to 300% of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained annual premiums for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum DouYu directors’ and officers’ liability insurance coverage that can be obtained for as set forth in Section 7.6(c) of the remainder DouYu Disclosure Schedule, and if the cost of such period by paying insurance policy exceeds such amount, then the Maximum Premium, provided that aggregate premiums payable by Parent Surviving Corporation shall obtain a policy with the greatest coverage for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premiuma cost not exceeding such amount.
(d) In the event Parent, If Huya or the Surviving Corporation or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent Huya or the Surviving Corporation, as the case may be, Corporation shall assume all of the obligations set forth in this Section 6.117.6.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 7.6 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, Parties and their heirs and their legal representatives, each of which shall be a third-party beneficiary of the provisions of this Section 7.6.
Appears in 2 contracts
Samples: Merger Agreement (HUYA Inc.), Merger Agreement (DouYu International Holdings LTD)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of Without limiting any additional rights that any director, officer, trustee, employee, agent, or fiduciary may have under any employment or indemnification agreement or under the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Midstream Partnership Agreement, which provisions shall not be amendedthe Midstream GP LLC Agreement, repealed or otherwise modified for a period this Agreement or, if applicable, similar organizational documents or agreements of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (includingMidstream’s Subsidiaries, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From from and after the Effective Time, Parent agrees that it will CEQP and the Surviving Entity, jointly and severally, shall: (i) indemnify and hold harmless each present and former director and officer of person who is at the Company, (when acting in such capacity) determined as date hereof or during the period from the date hereof through the date of the Effective Time serving as a director or officer of Midstream or any of its Subsidiaries (eachincluding, an Indemnified Party andfor the avoidance of doubt, Midstream GP) or as a fiduciary under or with respect to any employee benefit plan (within the meaning of Section 3(3) of ERISA) (collectively, the “Indemnified Parties”)) to the fullest extent authorized or permitted by applicable Law, against as now or hereafter in effect, in connection with any costs or expenses (including reasonable attorneys’ fees Claim and expenses)any losses, claims, damages, liabilities, costs, Indemnification Expenses, judgments, fines, losses, penalties and amounts paid in settlement claims(including all interest, damages assessments and other charges paid or liabilities (collectively, “Costs”) incurred payable in connection with or in respect of any claimthereof) resulting therefrom; and (ii) promptly pay on behalf of or, within ten (10) days after any request for advancement, advance to each of the Indemnified Parties, any Indemnification Expenses incurred in defending, serving as a witness with respect to or otherwise participating with respect to any Claim in advance of the final disposition of such Claim, including payment on behalf of or advancement to the Indemnified Party of any Indemnification Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to such indemnification and/or advancement, in each case without the requirement of any bond or other security. The indemnification and advancement obligations of CEQP and the Surviving Entity pursuant to this Section 6.13(a) shall extend to acts or omissions occurring at or before the Effective Time and any Claim relating thereto (including with respect to any acts or omissions occurring in connection with the approval of this Agreement and the consummation of the Merger and the transactions contemplated by this Agreement, including the consideration and approval thereof and the process undertaken in connection therewith and any Claim relating thereto), and all rights to indemnification and advancement conferred hereunder shall continue as to a person who has ceased to be a director or officer of Midstream or any of its Subsidiaries or as a fiduciary under or with respect to any employee benefit plan (within the meaning of Section 3(3) of ERISA) after the date hereof and shall inure to the benefit of such person’s heirs, executors and personal and legal representatives. As used in this Section 6.13: (x) the term “Claim” means any threatened, asserted, pending or completed action, suitwhether instituted by any party hereto, proceeding any Governmental Authority or investigationany other person, actual that any Indemnified Party in good faith believes might lead to the institution of any action or threatenedproceeding, whether civil, criminal, administrative administrative, investigative or investigative other, including any arbitration or other alternative dispute resolution mechanism (a “ClaimAction”), in whole or in part based on or arising in whole or in part out of or pertaining to matters existing that relate to such Indemnified Party’s duties or occurring service as a director or officer of Midstream, any of its Subsidiaries, or as a fiduciary under or with respect to any employee benefit plan (within the meaning of Section 3(3) of ERISA) maintained by any of the foregoing at or prior to the Effective Time; and (y) the term “Indemnification Expenses” means reasonable attorneys’ fees and all other reasonable costs, whether asserted 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 claimed prior toincurred in connection with investigating, at defending, being a witness in or after the Effective Timeparticipating in (including on appeal), or preparing to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws investigate, defend, be a witness in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it or participate in, any Claim for which indemnification is ultimately determined that such Person is not entitled to indemnification under the DGCL).
(c) Parent shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance authorized pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event Parent6.13(a), including any Action relating to a claim for indemnification or advancement brought by an Indemnified Party. Neither CEQP nor the Surviving Corporation Entity shall settle, compromise or consent to the entry of any judgment in any actual or threatened Action in respect of their respective successors which indemnification has been or assigns (i) consolidates with could be sought by such Indemnified Party hereunder unless such settlement, compromise or merges into any other Person and shall not be the continuing or surviving corporation or entity judgment includes an unconditional release of such consolidation Indemnified Party from all liability arising out of such Action without admission or mergerfinding of wrongdoing, or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representativesotherwise consents thereto.
Appears in 2 contracts
Samples: Merger Agreement (Crestwood Midstream Partners LP), Merger Agreement
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will the Surviving Corporation shall indemnify and hold harmless harmless, to the fullest extent permitted by Law, each present and former director and director, officer or employee of the CompanyCompany and its Subsidiaries (in each case, (when acting for actions taken in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Company Indemnified Parties”), ) against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole whether arising before or in part based on or after the Effective Time, arising in whole or in part out of the fact that such person is or was a director, officer or employee of the Company or any of its Subsidiaries and pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after including the Effective Timetransactions contemplated by this Agreement, to the fullest extent that such persons are entitled to be indemnified as of the date of this Agreement by the Company would have been permitted under pursuant to the DGCL and its certificate Company Certificate, the Company Bylaws or the governing or organizational documents of incorporation and bylaws in effect on any Subsidiary of the date hereof Company applicable to indemnify such Person (and Parent person. The Surviving Corporation shall also advance expenses as incurred by such Company Indemnified Party to the fullest extent permitted under applicable law such persons are entitled to advancement of expenses as of the date of this Agreement by the Company pursuant to the Company Certificate, the Company Bylaws and the governing or organizational documents of any Subsidiary of the Company; provided that, if requested by Parent, the Person Company Indemnified Party to whom expenses are advanced provides an undertaking (in reasonable and customary form) to repay such advances if it is ultimately determined in a final determination by a court of competent jurisdiction that such Person Company Indemnified Party is not entitled to indemnification under the DGCL)indemnification.
(cb) Parent shall cause to be maintained, for For a period of not less than six (6) years from after the Effective Time, the Company’s Surviving Corporation shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance policy maintained by the Company (provided that the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions that are no less advantageous to the extent insured) with respect to claims arising from facts or events that it provides occurred at or before the Effective Time; provided, however, that Parent shall not be obligated to expend an amount that, in the aggregate, exceeds 250% of the current annual premium paid as of the date hereof by the Company for such insurance (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then Parent shall cause to be maintained policies of insurance that, in Parent’s good faith determination, provide the maximum coverage available for events occurring an aggregate cost equal to the Premium Cap. In lieu of the foregoing, the Company, in consultation with Parent, but only upon the prior written consent of Parent, may (and at the request of Parent, the Company shall use its reasonable best efforts to) obtain at or prior to the Effective Time (a six-year prepaid “tail” policy under the “D&O Insurance”) for all present and former Company’s existing directors and officers of insurance policy providing equivalent coverage to that described in the Company or any Subsidiary thereof, so long as preceding sentence if and to the aggregate premium therefor would not extent that the same may be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent mayobtained for an amount that, in lieu of maintaining such existing D&O Insurance as provided abovethe aggregate, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would does not exceed the Maximum PremiumPremium Cap and, in such case, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to not have any further obligations under this Section 6.11(c) shall in no event exceed the Maximum Premium6.7(b), other than to maintain such prepaid “tail” policy.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(ec) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 6.7 shall survive the Merger Effective Time and are intended to be for the benefit of, and shall be enforceable by, each Company Indemnified Party and his or her heirs and representatives. If the Surviving Corporation or any of its successors or assigns will consolidate with or merge into any other entity and not be the continuing or surviving entity of such consolidation or merger, transfer all or substantially all of its assets or deposits to any other entity or engage in any similar transaction, then in each case, the Surviving Corporation will cause proper provision to be made so that the successors and assigns of the Surviving Corporation will expressly assume the obligations set forth in this Section 6.7. The obligations of the Surviving Corporation, Parent and the Company under this Section 6.7 shall not be terminated or modified in a manner so as to adversely affect the Company Indemnified Parties, their heirs and their representativesParty or any other person entitled to the benefit of this Section 6.7 without the prior written consent of the affected Company Indemnified Party or affected person.
Appears in 2 contracts
Samples: Merger Agreement (Oceanfirst Financial Corp), Merger Agreement (Partners Bancorp)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation Stream shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreementnot, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time Closing, take any action to alter or impair any exculpatory or indemnification provisions now existing in any manner that would adversely affect the rights thereunder Articles of the Indemnified Parties under the certificate of incorporation Incorporation or bylaws By-laws or comparable governing documents of the Company in respect or its Subsidiaries for the benefit of actions any individual who served as a director or omissions occurring officer of the Company or any of its Subsidiaries at or any time prior to the Effective Time (includingClosing, without limitation, except for any changes which may be required to conform with changes in applicable Law and any changes which do not affect the transactions contemplated by this Agreement), unless application of such modification is required by applicable lawprovisions to acts or omissions of such individuals prior to the Closing.
(b) From and after the Effective TimeClosing, Parent Stream agrees that it will, and will cause the Company or its Subsidiaries to, indemnify and hold harmless each present and former individual serving as a director and or officer of the Company, (when acting in such capacity) determined Company or its Subsidiaries as of the Effective Time Closing (each, an Indemnified Party and, collectively, the “Indemnified Parties”), ) against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, claims, damages, liabilities or amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of or pertaining to matters existing or occurring at or prior to the Effective TimeClosing, whether asserted or claimed prior to, at or after the Effective TimeClosing, to the fullest extent that permitted under Delaware law (and Stream and the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law Delaware law, provided the Person individual to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person individual is not entitled to indemnification under the DGCLindemnification).
(c) Parent shall cause to be maintained, for For a period of not less than six years after the Closing, Stream shall maintain, or shall cause the Company to maintain (6to the extent available in the market) years from the Effective Time, the Company’s current in effect a directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided covering those persons who are currently covered by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum Company’s directors’ and officers’ liability insurance policy (a copy of which has been heretofore delivered to Stream) with coverage in amount and scope at least as favorable to such persons as the Company’s existing coverage; provided, that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed shall Stream or the Company be required to expend annually in excess of 300% of the annual premium currently paid by the Company for such coverage (the “Maximum Amount”). If, notwithstanding the use of commercially reasonable efforts to do so, Stream is unable to maintain or obtain the insurance called for by this paragraph, Stream shall obtain as much comparable insurance as is available for the Maximum PremiumAmount. The Indemnified Parties may be required, as a condition for obtaining such coverage, to make reasonable application and provide reasonable and customary representations and warranties to applicable insurance carriers for the purpose of obtaining such insurance.
(d) In the event Parent, the Surviving Corporation or any The rights 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, to the extent necessary, proper provision Indemnified Party under this Section 5.6 shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may any right such Person might have under the certificate articles of incorporation, bylaws incorporation or agreements by-laws or comparable documents of or with the Company or any of its Subsidiaries Subsidiaries, or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses Law or under any agreement of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity with Company or other obligations under this Section 6.11any of its Subsidiaries. The provisions of this Section 6.11 shall survive the Merger and 5.6 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their respective heirs and their representatives.
Appears in 2 contracts
Samples: Share Exchange Agreement (Stream Global Services, Inc.), Share Exchange Agreement (Ares Corporate Opportunities Fund II, L.P.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to Without limiting any additional rights that any present or former manager, director, officer, trustee, agent, or fiduciary may have under any indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of agreement or under the Company on Charter, the date Company Bylaws, Parent Declaration of this AgreementTrust or Parent Bylaws or, which provisions shall not be amendedif applicable, repealed comparable Organizational Documents of any Company Subsidiary or otherwise modified for a period of six (6) years Parent Subsidiary, from and after the Effective Time in any manner that would adversely affect until the rights thereunder sixth (6th) anniversary of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective TimeClosing Date, Parent agrees that it will and the Surviving Entity shall: (i) indemnify and hold harmless each present and former director and officer person who is at the date hereof, was previously, or during the period from the date hereof through the date of the Effective Time, serving as a manager, director, officer, trustee, member or fiduciary, in each case to the extent such persons are otherwise entitled to indemnification pursuant to the terms of the Organizational Documents of Company and the Company Subsidiaries as in effect on the date hereof, of Company, (when or any of the Company Subsidiaries or Parent or any of the Parent Subsidiaries and acting in such capacity) determined as of the Effective Time capacity (each, an Indemnified Party and, collectively, the “Indemnified Parties”)) to the fullest extent authorized or permitted by applicable Law as now or hereafter in effect, against in connection with any costs or expenses (including reasonable attorneys’ fees Claim and expenses)any losses, claims, damages, liabilities, costs, Claim Expenses, judgments, fines, losses, penalties and amounts paid in settlement claims(including all interest, damages assessments and other charges paid or liabilities (collectively, “Costs”) incurred payable in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), in whole or in part based on respect of any thereof) relating to or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL resulting from such Claim; and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL).
(c) Parent shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements promptly pay on behalf of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees advance to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs in each case to the extent such persons are otherwise entitled to payment or advancement of expenses pursuant to the terms of the Organizational Documents of Company and their representatives.the Company Subsidiaries as in effect on the date hereof, any Claim Expenses incurred in defending, serving as a witness with respect to or otherwise participating with respect to any Claim in advance of the final disposition of such Claim, including payment on behalf of or advancement to the Indemnified Party of any Claim Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to such indemnification and/or advancement, in each case without the requirement of any bond or other security, but subject to (A) Parent’s and the Surviving Entity’s receipt of an undertaking by or on behalf of such Indemnified Party to repay such Claim Expenses if it is determined by a court of competent jurisdiction in a final, nonappealable judgment that such Indemnified Party is not entitled to be indemnified and (B) a good faith affirmation by such Indemnified Party of such Indemnified Party’s compliance with the standard of conduct required herein; provided, that neither Parent nor the Surviving Entity shall be liable for any amounts paid in settlement effected without its prior written consent, as applicable, and shall not be obligated to pay the fees and
Appears in 2 contracts
Samples: Merger Agreement (Kite Realty Group, L.P.), Merger Agreement (Retail Properties of America, Inc.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer of the CompanyCompany or any of its Subsidiaries and each other Person who, at the request or for the benefit of the Company or any of its Subsidiaries, is or was previously serving as a director or officer or fiduciary of any other Person or any benefit plan of the Company or any benefit plan of any of the Subsidiaries of the Company (in each case, when acting in such capacity) ), determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), from and against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, claims, damages, penalties, amounts paid in settlement claims(including all interest, damages assessments and other charges) or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company or the applicable Subsidiary of the Company would have been permitted under the DGCL Delaware law and under its certificate of incorporation and or bylaws or other governing documents in effect on the date hereof of this Agreement to indemnify such Person (and Parent shall also advance fees, costs and expenses (including attorney’s fees and disbursements) as incurred to the fullest extent permitted under applicable law Law, provided the Person 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 Person is not entitled to indemnification hereunder or thereunder).
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 6.11, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof, but the DGCL)failure to so notify shall not relieve Parent or the Surviving Corporation of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the indemnifying party.
(c) For six years after the Effective Time, Parent shall cause to be maintainedmaintained in effect provisions in the Surviving Corporation’s certificate of incorporation and bylaws (or in such documents of any successor to the business of the Surviving Corporation) regarding elimination of liability of directors, for a period indemnification of directors, officers, employees, fiduciaries and agents and advancement of fees, costs and expenses that are no less advantageous to the intended beneficiaries than the corresponding provisions in existence on the date of this Agreement. From and after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to honor and comply with their respective obligations under any indemnification agreement with any Indemnified Party in effect as of (and disclosed to Parent prior to) the date of this Agreement, and not less than six amend, repeal or otherwise modify any such agreement in any manner that would adversely affect any right of any Indemnified Party thereunder.
(6d) years from Prior to the Effective Time, the Company shall, and if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay for “tail” insurance policies for the extension of the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies with a claims period of at least six years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time 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 policy (collectively, “D&O Insurance”) with benefits and levels of coverage no less favorable in any material respect to the extent that it provides coverage for events Indemnified Parties than 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 “D&O Insurance”Transactions); provided, however, that in no event shall the Company expend for such policies a premium amount in excess of the amount set forth in Section 6.11(d) for all present and former directors and officers 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 of this Agreement with benefits and levels of coverage no less favorable in any material respect to the Indemnified Parties than that provided in the Company’s existing policies as of the date of this Agreement, or any Subsidiary thereofthe Surviving Corporation shall, so long and Parent shall cause the Surviving Corporation to, use its reasonable best efforts to purchase comparable D&O Insurance for such six-year period with benefits and levels of coverage at least as favorable to the aggregate Indemnified Parties as provided in the Company’s existing policies as of the date of this Agreement), provided, however, that in no event shall Parent or the Surviving Corporation be required to expend for such policies an annual premium therefor would not be amount in excess of Four Million Dollars ($4,000,000the amount set forth in Section 6.11(d) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy Company Disclosure Letter; and, provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or further that if the aggregate annual premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insuranceinsurance coverage exceed such amount, the maximum directors’ and officers’ liability insurance Surviving Corporation shall obtain a policy with the greatest coverage that can be obtained available for the remainder of a cost not exceeding such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premiumamount.
(de) In the event Parent, If Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume all of the obligations set forth in this Section 6.11.
(ef) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties.
(g) The rights of the Indemnified Parties under this Section 6.11 shall be in addition to any rights such Indemnified Parties may have under the certificate of incorporation or bylaws of the Company or any of its Subsidiaries, their heirs and their representativesor under any applicable Contracts or Laws.
Appears in 2 contracts
Samples: Merger Agreement (Conagra Brands Inc.), Merger Agreement (Pinnacle Foods Inc.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to Without limiting any additional rights that any manager, director, officer, trustee, agent, or fiduciary may have under any indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed agreement or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate Colonial Declaration of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitationTrust, the transactions contemplated by this Agreement)Colonial Bylaws, unless such modification is required by applicable law.
the Colonial LP Agreement or, if applicable, similar organizational documents or agreements of any Colonial Subsidiary (bthe “Organizational Documents”) From from and after the Parent Merger Effective Time, Parent agrees that it will MAA and MAA LP (the “Indemnifying Parties”), jointly and severally, shall: (i) indemnify and hold harmless each present and former director and officer person who is at the date hereof, was previously, or during the period from the date hereof through the date of the CompanyParent Merger Effective Time, (when serving as a manager, director, officer, trustee or fiduciary of Colonial or any of the Colonial Subsidiaries and acting in such capacity) determined as of the Effective Time capacity (each, an Indemnified Party and, collectively, the “Indemnified Parties”)) to the fullest extent authorized or permitted by applicable Law, against as now or hereafter in effect, in connection with any costs or expenses (including reasonable attorneys’ fees Claim and expenses)any losses, claims, damages, liabilities, costs, Claim Expenses, judgments, fines, losses, penalties and amounts paid in settlement claims(including all interest, damages assessments and other charges paid or liabilities (collectively, “Costs”) incurred payable in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), in whole or in part based on respect of any thereof) relating to or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL resulting from such Claim; and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL).
(c) Parent shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event Parent, 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 or conveys all or substantially all promptly pay on behalf of its properties and assets or, within ten (10) Business Days after any request for advancement, advance to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs to the fullest extent authorized or permitted by applicable Law, as now or hereafter in effect, any Claim Expenses incurred in defending, serving as a witness with respect to or otherwise participating with respect to any Claim in advance of the final disposition of such Claim, including payment on behalf of or advancement to the Indemnified Party of any Claim Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to such indemnification and/or advancement, in each case without the requirement of any bond or other security, but subject to MAA’s receipt of an undertaking by or on behalf of such Indemnified Party to repay such Claim Expenses if it is ultimately determined under applicable Laws or any of the Organizational Documents that such Indemnified Party is not entitled to be indemnified; provided, however, that none of the Indemnifying Parties shall be liable for any amounts paid in settlement effected without MAA’s prior written consent and their representatives.shall not be obligated to pay the fees and expenses of more than one counsel (selected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties in any jurisdiction with respect to any single Claim except to the extent an Indemnified Party is advised by counsel that such Indemnified Party has conflicting interests with one or more other Indemnified Parties in the outcome of such action (in which event such Indemnified Party shall be entitled to engage separate counsel, the fees and expenses for which the Indemnifying Parties shall be liable); provided, further, that if, at any time prior to the sixth (6th) anniversary of the Partnership Merger Effective Time, any Indemnified Party delivers to MAA or MAA LP a written notice asserting that indemnification is required in accordance with this Section 7.6 with respect to a Claim, then the provisions for indemnification contained in this Section 7.6 with respect to such Claim shall survive the sixth (6th) anniversary of the Partnership Merger Effective Time until
Appears in 2 contracts
Samples: Merger Agreement (Mid America Apartment Communities Inc), Merger Agreement (Colonial Realty Limited Partnership)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, each of Parent and the Surviving Corporation agrees that it will indemnify and hold harmless each present and former director and officer of the CompanyCompany or any of its Subsidiaries (in each case, (when acting in such capacity) ), determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL and Laws of the State of California, its certificate articles of incorporation and bylaws and under any applicable Contracts with such Indemnified Parties that are set forth on Section 5.13(a) of the Company Disclosure Letter, in each case, in effect on the date hereof of this Agreement, to indemnify such Person (and Parent or the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under applicable law Law, the Company’s articles of incorporation and bylaws and under any applicable Contracts with such Indemnified Parties that are set forth on Section 5.13(a) of the Company Disclosure Letter; 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; and provided, further, that any determination required to be made with respect to whether an officer’s or director’s conduct complies with the standards set forth under the Laws of the State of California, the Company’s articles of incorporation and bylaws and under any applicable Contracts with such Indemnified Parties that are set forth on Section 5.13(a) of the Company Disclosure Letter shall be made by independent counsel selected by the Surviving Corporation.
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 5.13, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof, but the DGCLfailure to so notify shall not relieve Parent or the Surviving Corporation of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the indemnifying party. Except as otherwise provided in any applicable Contracts with Indemnified Parties as set forth on Section 5.13 of the Company Disclosure Letter, in the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) Parent or the Surviving Corporation shall have the right to assume the defense thereof and Parent and the Surviving Corporation shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Parent or the Surviving Corporation elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Parent or the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and Parent or the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that Parent and the Surviving Corporation shall be obligated pursuant to this paragraph (b) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, provided, that the fewest number of counsels necessary to avoid conflicts of interest shall be used; (ii) the Indemnified Parties will cooperate in the defense of any such matter, and (iii) Parent and the Surviving Corporation shall not be liable for any settlement effected without their prior written consent; and provided, further, that Parent and the Surviving Corporation shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law. Further, except as otherwise provided in any applicable Contracts with Indemnified Parties as set forth on Section 5.13 of the Company Disclosure Letter, if such indemnity is not available with respect to any Indemnified Party, then the Surviving Corporation and the Indemnified Party shall contribute to the amount payable in such proportion as is appropriate to reflect relative faults and benefits.
(c) At or prior to the Effective Time, Parent shall cause the Surviving Corporation as of the Effective Time to be maintained, obtain and Parent shall fully pay for “tail” insurance policies with a claims period of not less than at least six (6) years from and after the Effective Time, 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 policy and fiduciary liability insurance with benefits and levels of coverage at least as favorable as the Company’s existing policies with respect to the extent that it provides coverage for events matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the “D&O Insurance”) transactions or actions contemplated hereby); provided, however, that in no event shall Parent or the Surviving Corporation be required to expend for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate such policies an annual premium therefor would not be amount in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit 300% of the directors and officers of Parent or a separate policy provided annual premiums currently paid by the same insurer. If the existing D&O Insurance expiresCompany for such insurance; and, is terminated or canceled by the insurer or provided further that if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu annual premiums of such D&O Insuranceinsurance coverage exceed such amount, the maximum directors’ and officers’ liability insurance Surviving Corporation shall obtain a policy with the greatest coverage that can be obtained available for the remainder of a cost not exceeding such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premiumamount.
(d) In the event Parent, If Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume all of the obligations set forth in this Section 6.115.13.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 5.13 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties.
(f) The rights of the Indemnified Parties under this Section 5.13 shall be in addition to any rights such Indemnified Parties may have under the articles of incorporation or bylaws of the Company or any of its Subsidiaries, their heirs or under any applicable Contracts that are set forth on Section 5.13(a) of the Company Disclosure Letter or Laws. Further, in the event of any conflict or inconsistency between this Section 5.13 and their representativesthe rights and duties under Contracts with Indemnified Parties as set forth on Section 5.13 of the Company Disclosure Letter, the provisions most favorable to the Indemnified Parties shall control. All rights to indemnification and exculpation from liabilities for acts or omission occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles of incorporation or bylaws of the Company or any of its Subsidiaries or any Contract between such Indemnified Party and the Company or any of its Subsidiaries that are set forth on Section 5.13(a) of the Company Disclosure Letter, in each case, as in effect on the date of this Agreement, shall survive the Merger and the other transactions contemplated by this Agreement unchanged and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
Appears in 2 contracts
Samples: Merger Agreement (Unified Grocers, Inc.), Merger Agreement (Supervalu Inc)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for For a period of six (6) years from and after the Effective Time, ABCB shall (i) indemnify and hold harmless each individual who at the Effective Time in is, or any manner that would adversely affect time prior to the rights thereunder Effective Time was, a director, officer or employee of JAXB or any of its Subsidiaries (the Indemnified Parties under the certificate of incorporation or bylaws of the Company “Indemnitees”) in respect of actions all claims, liabilities, losses, damages, judgments, fines, penalties costs and expenses (including reasonable attorneys’ fees) in connection with any claim, suit, action, proceeding or investigation (each a “Claim”), whenever asserted, based on or arising out the fact that the Indemnitee was an officer, director or employee of JAXB or any Subsidiary (or fiduciary of any benefit plan of JAXB or its Subsidiaries) for acts or omissions by the Indemnitee in such capacity or taken at the request of JAXB or any Subsidiary, at or any time prior to the Effective Time (including any Claim relating to the transactions contemplated by this Agreement or the Bank Merger Agreement), to the fullest extent permitted by Law and (ii) assume all obligations of JAXB and its Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (includingas provided in JAXB’s Charter Documents and the organizational documents of JAXB’s Subsidiaries. In addition, without limitationABCB, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From from and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against shall advance any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”fees) incurred in connection with of any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted Indemnitee under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses this Section 5.10 as incurred to the fullest extent permitted under applicable law by Applicable Law, provided that the Person Indemnitee to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately shall be determined that such Person Indemnitee is not entitled to indemnification under the DGCL)be indemnified pursuant to this Section 5.10.
(cb) Parent ABCB shall cause to be maintained, maintain in effect for a period of not less than six (6) years from after the Effective Time, the Company’s current directors’ and officers’ liability insurance policy policies maintained by JAXB (provided that ABCB may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are no less advantageous to the extent that it provides coverage for events such officers and directors so long as substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time Time; provided, however, that in no event shall ABCB be required to expend annually in the aggregate an amount in excess of three hundred fifty percent (350%) of the annual premium payment on JAXB’s current policy in effect as of the date of this Agreement (the “D&O InsurancePremium Cap”) and, in the event the cost of such coverage shall exceed that amount, ABCB shall purchase as much coverage as possible for all present and former directors and officers such amount. In lieu of the Company foregoing, ABCB may obtain at or prior to the Effective Time a prepaid “tail” policy providing coverage equivalent to that described in the preceding sentence for an aggregate price of no more than the Premium Cap.
(c) Any Indemnitee wishing to claim indemnification under Section 5.10(a) shall promptly notify ABCB in writing upon learning of any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum PremiumClaim, provided that aggregate premiums payable failure to so notify shall not affect the obligation of ABCB under Section 5.10(b) unless, and to the extent that, ABCB is materially prejudiced in the defense of such Claim as a consequence. In the event of any such Claim (whether arising before or after the Effective Time), (i) ABCB shall have the right to assume the defense thereof and ABCB shall not be liable to such Indemnitees for any legal expenses of other counsel or any other expenses subsequently incurred by Parent such Indemnitees in connection with the defense thereof, (ii) the Indemnitees will cooperate in the defense of any such matter in good faith, (iii) ABCB shall not be liable for any settlement effected without its prior written consent, (iv) ABCB shall have no obligation hereunder in the D&O Insurance pursuant event that a federal or state banking agency or a court of competent jurisdiction shall determine that indemnification of an Indemnitee in the manner contemplated hereby is prohibited by Applicable Law and (v) without the prior written consent of the applicable Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), ABCB shall not settle or compromise or consent to this Section 6.11(c) shall the entry of any judgment in no event exceed the Maximum Premiumany such Claim unless such settlement, compromise or consent includes an unconditional release of such Indemnitee for all liability arising out of such Claim.
(d) The provisions of this Section 5.10 are intended for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any Indemnitee may have under JAXB Charter Documents, by contract or otherwise. In the event Parent, the Surviving Corporation ABCB or any of their respective 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, merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent ABCB or the Surviving Corporation, as the case may be, purchaser of its assets and properties shall assume the obligations set forth in this Section 6.11.
(e) The provisions of this 5.10. This Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 5.10 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representativesEffective Time.
Appears in 2 contracts
Samples: Merger Agreement (Jacksonville Bancorp Inc /Fl/), Merger Agreement (Ameris Bancorp)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees Purchaser shall, and shall cause the Surviving Company to, to the fullest extent permitted by applicable law (including to the fullest extent authorized or permitted by any amendments to applicable law adopted after the date of this Agreement that it will increase the extent to which a corporation may indemnify its officers and directors), indemnify, defend and hold harmless (and promptly advance expenses from time to time as incurred to the fullest extent permitted by applicable law, provided, the person to whom expenses are advanced provides a reasonable and customary undertaking (which shall not include posting of any collateral) to repay such advances, if it is ultimately determined that such person is not entitled to indemnification) each present and former director and officer of the Company, Company or any of its subsidiaries (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, collectively the “Indemnified Parties”), ) from and against any and all costs or expenses (including reasonable attorneys’ fees fees, expenses and expensesdisbursements), judgments, fines, losses, claims, damages, penalties, liabilities and amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative administrative, regulatory or investigative (a “Claim”)investigative, in whole arising out of, relating to or in part based on connection with any circumstances, developments or matters in existence, or acts or omissions occurring or alleged to occur prior to or at the Effective Time in their capacities as officers and directors of Company or any of its subsidiaries, including the approval of this Agreement and the Merger and the other transactions contemplated hereby or arising in whole or in part out of matters existing or occurring at or prior pertaining to the Effective TimeMerger and the other transactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Time.
(b) Following the Effective Time, the Surviving Company shall, and Purchaser shall cause the Surviving Company to, adopt and maintain in effect the provisions in its organizational documents to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of Indemnified Parties, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the certificate of incorporation and bylaws of Company in effect on the date of this Agreement, to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof from time to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted time under applicable law, which provisions shall not be amended except as required by applicable law provided or except to make changes permitted by applicable law that would enlarge the Person scope of the Indemnified Parties’ indemnification rights thereunder, it being understood that nothing in this sentence shall require any amendment 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 under organizational documents of the DGCL)Surviving Company so long as the Surviving Corporation complies with its obligations hereunder.
(c) Parent shall cause Subject to be maintainedthe following sentence, for a period of not less than six (6) years from following the Effective Time, Purchaser will purchase and provide director’s and officer’s liability insurance and fiduciary liability insurance from an insurance carrier with the same or better credit rating as Company’s current insurance carrier with respect to such director’s and officer’s insurance that serves to reimburse the present and former officers and directors of Company or any of its subsidiaries (determined as of the Effective Time) with respect to claims against such directors and officers arising from facts or events occurring before the Effective Time, which insurance will contain at least the same coverage and amounts, and contain terms and conditions no less favorable to the Indemnified Party as that coverage currently provided by Company; provided, that in no event shall Purchaser be required to expend, on an annual basis, an amount in excess of 300% of the annual premiums paid as of the date hereof by Company for any such insurance (the “Premium Cap”); provided, further, that if any such annual expense at any time would exceed the Premium Cap, then Purchaser will cause to be maintained policies of insurance which provide the maximum coverage available at an annual premium equal to the Premium Cap. At the option of Company or if requested by Purchaser, prior to the Effective Time and in lieu of the foregoing, Company may (and Company shall, if requested by Purchaser and if such policy is available), purchase a tail policy for directors’ and officers’ liability insurance policy on the terms described in the prior sentence (including subject to the extent that it provides coverage aggregate Premium Cap for events occurring the 6-year period) and fully pay for such policy prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent mayTime, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided which event Purchaser’s obligations under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) 6.8 shall in no event exceed the Maximum Premiumbe fully satisfied.
(d) In Any Indemnified Party wishing to claim indemnification under Section 6.8(a), upon learning of any claim, action, suit, proceeding or investigation described above, will promptly notify Purchaser; provided, that failure to so notify will not affect the event Parentobligations of Purchaser under Section 6.8(a) unless and to the extent that Purchaser is materially and adversely prejudiced as a consequence.
(e) If Purchaser, the Surviving Corporation Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or the 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 Personperson, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent Purchaser or the Surviving CorporationCompany, as the case may be, shall assume the obligations set forth in this Section 6.116.8.
(ef) The provisions rights of each Indemnified Party under this Section 6.11 are 6.8 shall be in addition to the any rights that an Indemnified Party such person may have under the certificate of incorporation, incorporation or bylaws or agreements of or with the Company or any of its Subsidiaries subsidiaries, or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses law or under any agreement of counsel) that may be incurred by any Indemnified Party in successfully enforcing with Company or any of its subsidiaries (and Purchaser shall, and shall cause the indemnity Surviving Company to, honor and perform under all indemnification agreements entered into by Company or other obligations under this Section 6.11any of its subsidiaries). The provisions of this Section 6.11 These rights shall survive consummation of the Merger and are intended to be for the benefit ofbenefit, and shall be enforceable by, each Indemnified Party. The obligations of Purchaser under this Section 6.8 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party unless the affected Indemnified Party shall have consented in writing to such termination or modification. It is expressly agreed that each Indemnified Party shall be a third-party beneficiary of this Section 6.8, and entitled to enforce the covenants contained in this Section 6.8. If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 6.8 that is denied by Purchaser and/or the Surviving Company, and a court of competent jurisdiction determines that the Indemnified PartiesParty is entitled to such indemnification or advancement of expense, in whole or in part, then Purchaser or the Surviving Company shall pay such Indemnified Party’s costs and expenses, including legal fees and expenses, incurred in connection with pursuing such claim against Purchaser and/or the Surviving Company.
(g) 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 Company or any of its respective subsidiaries for any of their heirs respective directors, officers or other employees, it being understood and their representativesagreed that the indemnification provided for in this Section 6.8 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (SWS Group Inc), Merger Agreement (Hilltop Holdings Inc.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, the Surviving Corporation shall, and Parent agrees that it will indemnify shall cause the Surviving Corporation to, indemnify, defend and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of all individuals who on or before the Effective Time were directors or officers of the Company (each, an “Indemnified Party Person” and, collectively, the “Indemnified PartiesPersons”)) to the fullest extent permitted under the DGCL, against any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole arising out of, relating to or in part based on connection with (i) any acts or arising in whole omissions occurring or in part out of matters existing or occurring at or alleged to occur prior to the Effective TimeTime in their capacities as officers or directors of the Company or any of its Subsidiaries or taken by them at the request of the Company or any of its Subsidiaries (including, whether asserted without limitation, acts or claimed prior toomissions in connection with such persons serving as an officer, director or other fiduciary in any entity if such service was at the request or after for the Effective Timebenefit of the Company or any of its Subsidiaries) or (ii) the adoption and approval of this Agreement, the Merger or the other transactions contemplated by this Agreement or arising out of or pertaining to the fullest extent that transactions contemplated by this Agreement. In the Company would have been permitted under event of any such claim, action, suit, proceeding or investigation, the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (Surviving Corporation shall, and Parent shall also cause the Surviving Corporation to, advance expenses as reasonably incurred to in the fullest extent permitted under applicable law defense thereof; provided the that any Person to whom expenses are advanced provides an undertaking undertaking, if and only to the extent required by the DGCL, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under indemnification. Without limiting the DGCL).
(c) foregoing, Parent and the Surviving Corporation shall cause the certificate of incorporation and By-Laws of the Surviving Corporation to be maintained, include for a period of six (6) years, at a minimum, the indemnification and exculpation provisions of the certificate of incorporation and By-Laws of the Company as in effect at the Effective Time and shall cause such provisions not less than to be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of any Indemnified Person who was entitled to rights thereunder as of the Effective Time. In addition, Parent and Surviving Corporation agree that the indemnification and advancement obligations of the Company or any Subsidiary as set forth in indemnification agreements to which it is a party shall be continuing obligations of the Surviving Corporation or such Subsidiary, as applicable, and shall not be amended, repealed or otherwise modified after the Effective Time, except as permitted by the Company’s current terms and provisions of those agreements.
(b) The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, obtain (or if obtained by the Company prior to the Effective Time, maintain in effect) a six-year “tail” directors’ and officers’ liability insurance policy to covering the extent that it provides coverage Indemnified Persons for events occurring prior to the entire period of six (6) years after the Effective Time (the “D&O Insurance”) for all present with terms and former directors and officers of the Company or any Subsidiary thereof, so long conditions at least as favorable as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such Company’s and its Subsidiaries’ existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance (including for acts or omissions described in clauses (i) and (ii) in Section 7.10(a)) covering each such Indemnified Person covered immediately prior to the Effective Time by the Company’s officers’ and directors’ liability insurance policy on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date hereof to the extent that such insurance coverage, can be obtained for purchased at a cost of not greater than six (6) times the remainder most recently paid annual premium of the Company’s current insurance policies and, if such insurance coverage cannot be so purchased or maintained at such cost, providing as much of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premiuminsurance as can be so purchased or maintained at such cost.
(dc) In If the event Surviving Corporation, Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation consideration or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving CorporationCorporation or Parent, as the case may beapplicable, shall assume all of the obligations set forth in this Section 6.117.10.
(ed) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 7.10 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, Persons and their heirs and their legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, pursuant to law, contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Renova Media Enterprises Ltd.), Merger Agreement (Moscow Cablecom Corp)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, to the fullest extent permitted under applicable Law, each of Parent and the Surviving Entity agrees that it will indemnify jointly and severally (i) indemnify, defend and hold harmless each present and former (determined as of the Effective Time) director and officer of the CompanyPartnership, (the GP Delegate and the General Partner, in each case, when acting in such capacity) determined as capacity (including the heirs, executors and administrators of the Effective Time (each, an Indemnified Party and, collectivelyany such director or officer, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, penalties, sanctions, losses, amounts paid in settlement claims, damages or liabilities incurred and amounts paid in settlement (collectivelyincluding all interest, “Costs”) incurred assessments and other charges paid or payable in connection with or in respect of any claimthereof) in connection with, action, suit, proceeding arising out of or investigation, otherwise related to any acts or omissions or actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)threatened Proceeding, in whole or each case in part based on or connection with, arising in whole or in part out of or otherwise related to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including in connection with (A) the Transactions, and (B) actions to the fullest extent that the Company would have been permitted under the DGCL enforce this provision or any other indemnification or advancement right of any Indemnified Party, and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also ii) advance expenses as incurred in each case described in clause (i) to the fullest extent permitted under applicable law Law; provided the that any Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by a final and non-appealable judgment entered by a court of competent jurisdiction that such Person is not entitled to indemnification indemnification.
(b) Parent shall maintain in effect, or cause to be maintained in effect, (i) the insurance liability coverage of the existing directors’ and officers’ insurance policies for directors and officers of the GP Delegate, and (ii) the Partnership’s existing fiduciary liability insurance policies (collectively, the “D&O Insurance”) in place as of the date of this Agreement, in each case, for a claims reporting or discovery period of six years from and after the Effective Time (the “Tail Period”), with terms, conditions and limits of liability that are at least as favorable to the insureds as provided in the existing policies providing such coverage as of the date of this Agreement; provided, however, that in no event during the Tail Period shall Parent be required to expend more on the annual cost of the D&O Insurance than an amount per year equal to 300 percent of the current annual premiums charged to the Partnership by Parent for such insurance; and provided, further, that if the cost of such insurance coverage exceeds such amount, the Surviving Entity shall have the option to obtain a policy with the greatest coverage available for a cost not exceeding such amount. If Parent in its sole discretion elects, then, in lieu of the obligations of the Surviving Entity under this Section 8.10(b), Parent may, but shall be under no obligation to, prior to the DGCLEffective Time, obtain and fully pay the premium for “tail” insurance policies for the extension of the D&O Insurance for the Tail Period with respect to matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the Transactions).
(c) Any Indemnified Party wishing to claim indemnification under this Section 8.10, upon learning of any such Proceeding, shall promptly notify Parent thereof in writing, but the failure to so notify shall cause not relieve Parent or the Surviving Entity of any liability it may have to be maintainedsuch Indemnified Party, for a period of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy except to the extent such failure materially prejudices the indemnifying party. In the event of any Proceeding: (i) Parent or the Surviving Entity shall have the right to assume the defense thereof (it being understood that it provides coverage by electing to assume the defense thereof, neither Parent nor the Surviving Entity will be deemed to have waived any right to object to the Indemnified Party’s entitlement to indemnification hereunder with respect thereto or assumed any liability with respect thereto), except that if Parent or the Surviving Entity elects not to assume such defense or legal counsel or the Indemnified Party advises that there are issues which raise conflicts of interest between Parent or the Surviving Entity and the Indemnified Party, the Indemnified Party may retain legal counsel satisfactory to them, and Parent or the Surviving Entity shall pay all reasonable and documented fees and expenses of such legal counsel for events the Indemnified Party promptly as statements therefor are received; provided, however, that Parent and the Surviving Entity shall be obligated pursuant to this Section 8.10(c) to pay for only one firm of legal counsel for all Indemnified Parties with respect to any Proceeding in any jurisdiction unless the use of one legal counsel for such Indemnified Parties would present such legal counsel with a conflict of interest (provided that the fewest number of legal counsels necessary to avoid conflicts of interest shall be used); (ii) the Indemnified Parties shall cooperate in the defense of any such matter if Parent or the Surviving Entity elects to assume such defense, and Parent and the Surviving Entity shall cooperate in the defense of any such matter if Parent or the Surviving Entity elects not to assume such defense; (iii) the Indemnified Parties shall not be liable for any settlement effected without their prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) if Parent or the Surviving Entity elects to assume such defense and Parent and the Surviving Entity shall not be liable for any settlement effected without their prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) if Parent or the Surviving Entity elects not to assume such defense; and (iv) all rights to indemnification in respect of any such Proceedings shall continue until final disposition of all such Proceedings.
(d) During the Tail Period, Parent shall honor (and shall cause the General Partner, the GP Delegate and the Surviving Entity to honor) all rights to indemnification, elimination of liability and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers rights to advancement of expenses relating thereto as in effect as of the Company date of this Agreement in favor of any Indemnified Party as provided in the Organizational Documents of the General Partner, the GP Delegate, the Partnership or any Subsidiary thereofof their respective Subsidiaries or any indemnification agreement between such Indemnified Party and the General Partner, so long the GP Delegate, the Partnership or any of their respective Subsidiaries, in each case, as in effect on the aggregate premium therefor would date of this Agreement, and all of such rights shall survive the Transactions unchanged and shall not be amended, restated, repealed or otherwise modified in excess any manner that would adversely affect any right thereunder of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining any such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum PremiumIndemnified Party.
(de) In the event If Parent, the General Partner, the GP Delegate or the Surviving Corporation Entity or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity Person of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent Parent, the General Partner, the GP Delegate or the Surviving CorporationEntity, as the case may beapplicable, shall assume all of the obligations set forth in this Section 6.118.10.
(ef) The provisions rights of the Indemnified Parties under this Section 6.11 8.10 are in addition to the any rights that an such Indemnified Party Parties may have under the certificate Organizational Documents of incorporationthe General Partner, bylaws or agreements of or with the Company GP Delegate, the Partnership or any of its Subsidiaries their respective Subsidiaries, or under any applicable law. Parent agrees Contracts or Laws, and nothing in this Agreement is intended to, shall be construed to pay all costs or shall release, waive or impair any rights to directors’ and expenses (including reasonable fees and expenses officers’ insurance claims under any policy that is or has been in existence with respect to the General Partner, the GP Delegate, the Partnership or any of counsel) that may be incurred by their respective Subsidiaries for any Indemnified Party in successfully enforcing the indemnity of their respective directors, officers or other obligations under employees (it being understood that the indemnification provided for in this Section 6.11. The provisions 8.10 is not prior to or in substitution of this any such claims under such policies).
(g) This Section 6.11 shall survive the Merger and are 8.10 is intended to be for the benefit of, and from and after the Effective Time shall be enforceable by, each of the Indemnified Parties, their heirs and their representativeswho shall be third-party beneficiaries of this Section 8.10. Any right of an Indemnified Party pursuant to this Section 8.10 shall not be amended, repealed, terminated or otherwise modified at any time in a manner that would adversely affect the rights of such Indemnified Party as provided herein.
Appears in 2 contracts
Samples: Merger Agreement (Enbridge Inc), Merger Agreement (Enbridge Energy Partners Lp)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate In the event of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed any threatened or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any actual claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminalcriminal or administrative, administrative including any such claim, action, suit, proceeding or investigative investigation (each a “Claim”) in which any individual who is now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of ANNB or any of the ANNB Subsidiaries or who is or was serving at the request of ANNB or any of the ANNB Subsidiaries as a director, officer, employee, member or otherwise of another Person (the “Indemnified Parties”), is, or is threatened to be, made a party based in whole or in part based on on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was a director or officer of matters ANNB or any of the ANNB Subsidiaries or was serving at the request of ANNB or any of the ANNB Subsidiaries as a director or officer of another Person or (ii) this Agreement or any of the transactions this Agreement contemplates, whether asserted or arising before or after the Effective Time, the parties shall cooperate and use their best efforts to defend against such Claim and respond thereto. From and after the Effective Time, FNB shall, and shall cause the Surviving Company to, indemnify, defend and hold harmless, as and to the fullest extent currently provided under applicable Law, the ANNB Articles and the ANNB Bylaws each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses, including reimbursement for reasonable fees and expenses, including fees and expenses of legal counsel, incurred in advance of the final disposition of any Claim upon receipt of any undertaking required by applicable Law, and judgments, fines and amounts paid in settlement in connection with any such threatened or actual Claim.
(b) FNB and the Surviving Company agree that all rights to indemnification of liabilities, including advancement of expenses, and all limitations with respect thereto, existing in favor of any Indemnified Person, as provided in the ANNB Articles or the ANNB Bylaws, shall survive the Merger and shall continue in full force and effect, without any amendment thereto; provided, however, that in the event any Claim is asserted or made after the Effective Date, any determination required to be made with respect to whether an Indemnified Person’s conduct complies with the standards set forth under the MGCL, the ANNB Articles or the ANNB Bylaws, as the case may be, shall be made by independent legal counsel, whose fees and expenses shall be paid by FNB and the Surviving Company, selected by such Indemnified Person and reasonably acceptable to FNB; and, provided further that nothing in this Section 6.7 shall impair any rights or obligations of any current or former director or officer of ANNB or its Subsidiaries, including pursuant to the respective organizational documents of ANNB, or their respective Subsidiaries, under the MGCL or otherwise.
(c) Prior to the Effective Time, FNB shall obtain at the expense of ANNB, and FNB shall maintain for a period of six years following the Effective Time, directors’ and officers’ liability insurance and fiduciary liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior toincluding the transactions this Agreement contemplates, at or after covering the Indemnified Persons who as of the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses Time are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL).
(c) Parent shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, the Companycovered by ANNB’s current directors’ and officers’ liability insurance or fiduciary liability insurance policies, provided that FNB may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are not less advantageous than such policies of ANNB or single premium tail coverage with policy limits equal to ANNB’s existing coverage limits, provided that in no event shall FNB be required to expend for any one year an amount in excess of 150% of the extent annual premium currently paid by ANNB for such insurance (the “Insurance Amount”), and further provided that it provides if FNB is unable to maintain or obtain the insurance called for by this Section 6.7(c) as a result of the preceding provision, FNB shall use its commercially reasonable best efforts to obtain the most advantageous coverage as is available for events occurring the maximum Insurance Amount. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if prepaid policies have been obtained prior to the Effective Time (from an insurer or insurers selected by FNB that have an insurer financial strength rating by A.M. Best Co. of at least “A”, which policies provide the “D&O Insurance”) for all present and former directors and officers Indemnified Persons with coverage, from the Effective Time to the sixth anniversary of the Company or any Subsidiary thereofEffective Time, so long as including in respect of the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided transactions this Agreement contemplates, on terms that Parent may, in lieu of maintaining such existing are no less advantageous to Indemnified Persons than ANNB’s D&O Insurance as provided above, cause no less favorable coverage existing immediately prior to be provided under any policy maintained for the benefit date of the directors and officers of Parent or a separate policy provided by the same insurerthis Agreement. If such prepaid policies have been obtained prior to the existing D&O Insurance expiresEffective Time, is terminated or canceled by then FNB shall maintain such policies in full force and effect and continue the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premiumobligations thereunder.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 6.7 shall survive the Merger Effective Time and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their Party and his or her heirs and their representatives.
Appears in 2 contracts
Samples: Merger Agreement (FNB Corp/Fl/), Merger Agreement (Annapolis Bancorp Inc)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate In the event of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed any threatened or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any actual claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminalcriminal or administrative, administrative including any such claim, action, suit, proceeding or investigative investigation in which any individual who is now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director, officer or employee of Unizan or any of its Subsidiaries or who is or was serving at the request of Unizan or any of its Subsidiaries as a director, officer, employee or agent of another person (a the “ClaimIndemnified Parties”), is, or is threatened to be, made a party based in whole or in part based on on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was a director, officer or employee of matters existing Unizan or occurring at any of its Subsidiaries or prior to (ii) this Agreement or any of the Effective Timetransactions contemplated by this Agreement, whether asserted or claimed prior to, at arising before or after the Effective Time, the parties shall cooperate and use their best efforts to defend against and respond thereto. From and after the Effective Time, Huntington shall indemnify and hold harmless, as and to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted currently provided under applicable law provided law, the Person to whom Unizan Articles, the Unizan Code and any agreement set forth in Section 6.8 of the Unizan Disclosure Schedule, each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses are advanced provides an (including reimbursement for reasonable fees and expenses incurred in advance of the final disposition of any claim, suit, proceeding or investigation upon receipt of any undertaking to repay required by applicable law), judgments, fines and amounts paid in settlement in connection with any such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL)threatened or actual claim, action, suit, proceeding or investigation.
(cb) Parent Huntington shall use its reasonable best efforts to cause the individuals serving as officers and directors of Unizan or any of its Subsidiaries immediately prior to the Effective Time to be maintained, covered for a period of not less than six (6) years from the Effective Time, Time by the Company’s current directors’ and officers’ liability insurance policy maintained by Unizan (provided that Huntington may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are not less advantageous than such policy) with respect to the extent that it provides coverage for events acts or omissions occurring prior to the Effective Time (the “D&O Insurance”) for all present that were committed by such officers and former directors and officers in their capacity as such; provided, that in no event shall Huntington be required to expend more than 200% per year of coverage of the Company or any Subsidiary thereof, so long amount currently expended by Unizan per year of coverage as of the aggregate premium therefor would not be in excess date of Four Million Dollars ($4,000,000) this Agreement (the “Maximum PremiumAmount”); provided that Parent may) to maintain or procure insurance coverage pursuant hereto, in lieu and (iii) if notwithstanding the use of maintaining such existing D&O Insurance reasonable best efforts to do so, Huntington is unable to maintain or obtain the insurance called for by this Section 6.8, Huntington shall obtain as provided above, cause no less favorable coverage to be provided under any policy maintained much comparable insurance as available for the benefit Maximum Amount, and (iv) such Indemnified Parties may be required to make reasonable application and provide reasonable and customary representations and warranties to Huntington’s insurance carrier for the purpose of obtaining such insurance, comparable in nature and scope to the applications, representations and warranties required of persons who are officers and directors of Huntington as of the directors date hereof.
(c) Huntington acknowledges and officers agrees that it shall assume, effective as of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O InsuranceEffective Time, the maximum directors’ indemnification and officers’ liability insurance coverage other obligations of Unizan set forth in Section 7.9 of that can be obtained for the remainder certain Agreement of such period Merger and Plan of Reorganization, dated as of September 5, 2001, by paying the Maximum Premiumand among UNB Corp. (which was subsequently renamed Unizan Financial Corp.), provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum PremiumThe United National Bank & Trust Company, BancFirst Ohio Corp. and The First National Bank of Zanesville, N.A., as amended.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 6.8 shall survive the Merger Effective Time and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their Party and his or her heirs and their representatives.
Appears in 2 contracts
Samples: Merger Agreement (Huntington Bancshares Inc/Md), Merger Agreement (Unizan Financial Corp)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate For a period of incorporation and bylaws of no less than six years after the First Effective Time, the Surviving Corporation Company shall contain provisions with respect to indemnification no more restrictive in scope (and no less favorable to Parent shall cause the Indemnified Parties Surviving Company to) indemnify and hold harmless, and provide advancement of expenses (as defined belowincluding attorneys’ fees) as set forth in the certificate of incorporation to, all current or former directors and bylaws officers of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect Subsidiaries, any Person who becomes a director or officer of actions the Company or omissions occurring at or any of the Company Subsidiaries prior to the First Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and any current or former director and of officer of the Company, (when acting in such capacity) determined as Company or any of the Company Subsidiaries who is, was or at any time prior to the First Effective Time serves or served as a director, officer, member, trustee or fiduciary of another corporation, partnership joint venture, trust, pension plan or employee benefit plan at the request of or for the benefit of the Company or any of the Company Subsidiaries (each, an Indemnified Party and, collectivelytogether with their respective heirs and representatives, the “Indemnified Parties”), against any costs ) to the fullest extent permitted by applicable Legal Requirements in respect of acts or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages omissions occurring or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), in whole or in part based on or arising in whole or in part out of matters existing or occurring alleged to have occurred at or prior to the First Effective Time, whether asserted or claimed prior to, at or after the First Effective Time, to in each case, by reason of the fullest extent that fact of such Persons serving as an officer or director of the Company would have been permitted under or any of the DGCL Company Subsidiaries or, while a director or officer of the Company or any of the Company Subsidiaries, was serving at the request of the Company or any of the Company Subsidiaries as a director, officer, member, trustee or fiduciary of another corporation, partnership joint venture, trust, pension plan or employee benefit plan, and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person Surviving Company shall (and Parent shall cause the Surviving Company to) also advance expenses (including attorneys’ fees) to the Indemnified Parties as incurred to the fullest extent permitted under by applicable law Legal Requirements; provided that the Person Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by a final and nonappealable Order by a court of competent jurisdiction that such Person Indemnified Party is not entitled to indemnification under this Section 4.11(a) or otherwise. All rights to indemnification and advancement conferred hereunder shall continue as to a Person who has ceased to be a director, officer or employee of the DGCL).
(c) Parent Company or any of the Company Subsidiaries after the date hereof and shall inure to the benefit of such Person’s heirs, successors, executors and personal and legal Representatives. The parties hereto agree that for six years after the First Effective Time all rights to elimination or limitation of liability, indemnification, exculpation or advancement of expenses for acts or omissions occurring or alleged to have occurred at or prior to the First Effective Time, whether asserted or claimed prior to, at or after the First Effective Time, now existing in favor of the Indemnified Parties as provided in the Organizational Documents of the Company or any of the Company Subsidiaries or in any written agreement between the Company or any of the Company Subsidiaries and such Person shall survive the Mergers and shall continue in full force and effect. For six years after the First Effective Time, the Surviving Company shall cause to be maintainedmaintained in effect the provisions in: (i) the Organizational Documents of the Company and each of the Company Subsidiaries; and (ii) any other agreements of the Company or any of the Company Subsidiaries with any Indemnified Party, for in each case, regarding exculpation, elimination or limitation of liability, indemnification of officers and directors or other fiduciaries and advancement of expenses that are in existence on the date of this Agreement, and no such provision shall be amended, modified or repealed in any manner that would materially and adversely affect the rights or protections thereunder of any such Indemnified Party in respect of acts or omissions occurring or alleged to have occurred at or prior to the First Effective Time without the consent of such Indemnified Party.
(b) For a period of not no less than six (6) years from following the First Effective Time, Parent and the Surviving Company shall cause to be maintained in effect the existing policy of the Company’s current directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (or a comparable replacement policy) (the “D&O InsurancePolicy”) covering claims arising from facts or events that occurred at or prior to the First Effective Time (including for all present acts or omissions occurring in connection with this Agreement and the consummation of the transactions contemplated by this Agreement) and covering each of the Company’s current and former directors and officers officers, in any case on terms with respect to coverage and amounts that are no less favorable than those terms in effect on the date of this Agreement; provided, however, that in no event shall Parent or the Surviving Company be required to expend in any one year an amount in excess of 300% of the current annual premium paid by the Company (which annual premium is set forth in Section 4.11(b) of the Company Disclosure Schedule) for such insurance (such 300% amount, the “Maximum Annual Premium”); and provided further, however, that if the annual premium of such insurance coverage exceeds the Maximum Annual Premium, Parent and the Surviving Company shall be obligated to obtain a policy with the greatest comparable coverage available for a cost not exceeding the Maximum Annual Premium. Notwithstanding anything to the contrary in this Agreement, in lieu of Parent’s obligations under the first sentence of this Section 4.11(b), the Company may, or if the Company is unable to, Parent may on its behalf, prior to the First Effective Time, purchase a six-year “tail” prepaid policy on the D&O Policy with an annual cost not in excess of the Maximum Annual Premium, and in the event that Parent or the Company shall purchase such a “tail” policy, Parent and the Surviving Company shall maintain such “tail” policy in full force and effect and continue to honor their respective obligations thereunder, in lieu of all other applicable obligations of Parent and the Surviving Company under the first sentence of this Section 4.11(b) for so long as such “tail” policy shall be maintained in full force and effect. Notwithstanding anything in this Section 4.11 to the contrary, if any Indemnified Party notifies Parent on or prior to the sixth anniversary of the First Effective Time of a matter in respect of which such Person may seek indemnification pursuant to this Section 4.11, the provisions of this Section 4.11 that require Parent and the Surviving Company to indemnify and advance expenses shall continue in effect with respect to such matter until the final disposition of all claims, actions, investigations, suits and proceedings relating thereto.
(c) The obligations under this Section 4.11 shall not be terminated, amended or otherwise modified in such a manner as to adversely affect any Indemnified Party (or any other Person who is a beneficiary under the D&O Policy or the “tail” policy referred to in Section 4.11(b) or any of such Person’s heirs, executors, beneficiaries or representatives) without the prior written consent of such affected Indemnified Party or other Person who is a beneficiary under the D&O Policy or the “tail” policy referred to in Section 4.11(b) (and, after the death of any of the foregoing Persons, such Person’s heirs, executors, beneficiaries or representatives). Each of the Indemnified Parties or other Persons who are beneficiaries under the D&O Policy or the “tail” policy referred to in Section 4.11(b) (and, after the death of any of the foregoing Persons, such Person’s heirs, executors, beneficiaries and representatives) are intended to be third party beneficiaries of this Section 4.11, with full rights of enforcement as if a party thereto. The rights of the Indemnified Parties (and other Persons who are beneficiaries under the D&O Policy or the “tail” policy referred to in Section 4.11(b) (and their heirs, executors, beneficiaries and representatives)) under this Section 4.11 shall be in addition to, and not in substitution for, any other rights that such Persons may have under the Organizational Documents of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors Company Subsidiaries, any and officers all indemnification agreements of or entered into by the Company or any of the Company Subsidiaries, or applicable Legal Requirements (whether at law or in equity). In the event of any breach by the Surviving Company or Parent of this Section 4.11, Parent or a separate policy provided the Surviving Company shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by the same insurer. If Indemnified Parties in enforcing the existing D&O Insurance expires, is terminated or canceled by indemnity and other obligations provided in this Section 4.11 as such fees are incurred upon the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu written request of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum PremiumIndemnified Party.
(d) In the event that Parent, the Surviving Corporation Company or any of their respective Subsidiaries (or any of their respective successors or assigns assigns) shall (i) consolidates consolidate or merge with or merges into any other Person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger, or (ii) transfers sell or conveys all or substantially all transfer a substantial portion of its properties and their respective assets to any other Person, then, and then in each such case, to the extent necessarynecessary to protect the rights of the Indemnified Parties and other Persons who are beneficiaries under the D&O Policy or the “tail” policy referred to in Section 4.11(b) (and their respective heirs and representatives), proper provision shall be made so that the successors and assigns of Parent continuing or surviving corporation or entity or the Surviving Corporationpurchaser or transferee entity, as the case may beapplicable (or its successors or assigns, if applicable) shall assume the obligations set forth in this Section 6.114.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 2 contracts
Samples: Merger Agreement (Drilling Tools International Corp), Merger Agreement (Superior Drilling Products, Inc.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation From and bylaws of after the Surviving Corporation Effective Time, Parent shall contain provisions with respect to indemnification no more restrictive in scope indemnify and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on hold harmless each person who is now, or who has been at any time before the date of this Agreement, or who becomes at or before the Effective Time, a director or officer of Company, or any persons who are or were serving at the request of Company or any of its Subsidiaries as a director, officer, trustee, fiduciary, employee or agent of another entity (including any Company Employee Benefit Plan) (each, a “Company Indemnified Party”) against all judgments, penalties, fines, settlements (which provisions settlement shall require the prior written consent of Parent, which consent shall not be amendedunreasonably withheld), repealed and reasonable expenses actually incurred (including attorneys’ fees), in connection with any claim, action, suit, proceeding, investigation or otherwise modified other legal proceeding, whether civil, criminal, administrative or investigative (each, a “Claim”) arising out of actions or omissions occurring at or prior to the Effective Time which were committed by such Company Indemnified Party (including the Mergers and the other transactions contemplated hereby) or in connection with any appearance as a witness, regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, to the fullest extent permitted under the Company Charter, Company Bylaws, and any agreement between the Company and such Company Indemnified Party, each as in effect on the date hereof. Any Company Indemnified Party wishing to claim indemnification under Section 6.7(a), upon learning of any Claim, shall promptly after the Effective Time notify Parent thereof.
(b) Parent shall maintain in effect for a period of six (6) years after the Effective Time in directors’ and officers’ liability insurance and fiduciary insurance policy (provided that Parent may substitute therefor (i) policies of at least the same coverage and amounts containing terms and conditions which are substantially no less advantageous or (ii) with the consent of Company given prior to the Effective Time, any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation other policy) with respect to claims arising from facts, events or bylaws of the Company in respect of actions or omissions occurring at or which occurred prior to the Effective Time and covering persons who are currently covered by such insurance; provided that Parent shall not be obligated to make aggregate annual premium payments for such six (including, without limitation, the transactions contemplated by this Agreement), unless 6)-year period in respect of such modification is required by applicable law.
policy (bor coverage replacing such policy) From and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer which exceed 250% of the annual premium payments on Company, (when acting ’s current policy in such capacity) determined effect as of the Effective Time date of this Agreement (each, an Indemnified Party and, collectively, the “Indemnified PartiesMaximum Amount”). If the amount of the premiums necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, against any costs or expenses (including Parent shall use its reasonable attorneysbest efforts to maintain the most advantageous policies of directors’ fees and expenses)officers’ liability insurance obtainable for a premium equal to the Maximum Amount. In lieu of the foregoing, judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), in whole or in part based Parent may obtain on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, a six (6)-year “tail” prepaid policy providing equivalent coverage to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws described in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCLthis Section 6.7(b).
(c) Parent shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 6.7 are intended to be for the benefit of, and shall be enforceable by, each of the Company Indemnified Parties, Party and their respective heirs and their representatives.
Appears in 2 contracts
Samples: Merger Agreement (Southside Bancshares Inc), Merger Agreement (OmniAmerican Bancorp, Inc.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective TimeTime for a period of six years, Parent agrees that it will indemnify and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “"Indemnified Parties”"), against any costs or expenses (including reasonable attorneys’ ' fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “"Costs”") incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL Maryland law and its certificate articles of incorporation and or bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides (i) a written affirmation of his or her good faith belief that the standard of conduct necessary for indemnification has been met, and (ii) an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCLindemnification).
(cb) Parent shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s 's current directors’ ' and officers’ ' liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “"D&O Insurance”") for all present and former directors and officers of the Company or any Subsidiary subsidiary thereof, so long as the aggregate annual premium therefor would not be in excess of Four Million Dollars 150% of the last annual premium paid for the D&O Insurance prior to the date of this Agreement ($4,000,000) (150% of such premium, the “"Maximum Premium”"); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate annual premium would exceed the Maximum PremiumPremium during such period, Parent shall obtain, in lieu of such D&O Insurance, the maximum such comparable directors’ ' and officers’ ' liability insurance coverage that as can be obtained for the remainder of such period by paying for an annualized premium not in excess of the Maximum Premium, provided that aggregate premiums payable by Parent for Premium and on terms and conditions no less advantageous than the existing D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum PremiumInsurance.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(ec) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate articles of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11Section. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 2 contracts
Samples: Merger Agreement (Correctional Services Corp), Merger Agreement (Youth Services International Inc)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will and will cause the Surviving Corporation to (including by Parent providing sufficient funds to the Surviving Corporation or the applicable Subsidiary) indemnify and hold harmless each present and former director and officer of the Company or any of its Subsidiaries and each other Person who, at the request or for the benefit of the Company or any of its Subsidiaries, is or was previously serving as a director or officer, MLP employee or fiduciary of any other Person or any benefit plan of the Company or any benefit plan of any of the Company’s Subsidiaries (in each case, (when acting in such capacity) ), determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), from and against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, claims, damages, penalties, amounts paid in settlement claims(including all interest, damages assessments and other charges) or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company or the applicable Subsidiary of the Company would have been permitted under the DGCL Delaware law and under its certificate of incorporation and bylaws or by-laws or other governing documents in effect on the date hereof of this Agreement to indemnify such Person (and Parent or the Surviving Corporation shall also advance fees, costs and expenses (including attorney’s fees and disbursements) as incurred to the fullest extent permitted under applicable law Law, provided the Person 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 Person is not entitled to indemnification hereunder or thereunder).
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 6.13, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof, but the DGCL)failure to so notify shall not relieve Parent or the Surviving Corporation of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the indemnifying party.
(c) For six years after the Effective Time, Parent shall cause to be maintainedmaintained in effect provisions in the Surviving Corporation’s certificate of incorporation and by-laws (or in such documents of any successor to the business of the Surviving Corporation (including, for a period clarity the Surviving Company, if applicable)) regarding elimination of liability of directors, indemnification of directors, officers, employees, fiduciaries and agents and advancement of fees, costs and expenses that are no less advantageous to the intended beneficiaries than the corresponding provisions in existence on the date of this Agreement. From and after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to honor and comply with their respective obligations under any indemnification agreement with any Indemnified Party in effect as of (and disclosed to Parent prior to) the date hereof, and not less than six amend, repeal or otherwise modify any such agreement in any manner that would adversely affect any right of any Indemnified Party thereunder
(6d) years from Prior to the Effective Time, the Company shall, and if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay for “tail” insurance policies (providing only for the Side A coverage for Indemnified Parties where the existing policies also include Side B coverage for the Company) with a claims period of at least six years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time 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 policy and fiduciary liability insurance (collectively, “D&O Insurance”) with benefits and levels of coverage no less favorable in any material respect to the extent that it provides coverage for events Indemnified Parties than 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 “D&O Insurance”transactions or actions contemplated hereby); provided, however, that in no event shall the Company expend for such policies a premium amount in excess of the amount set forth in Section 6.13(d) for all present and former directors and officers 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 of this Agreement with benefits and levels of coverage no less favorable in any material respect to the Indemnified Parties than that provided in the Company’s existing policies as of the date of this Agreement, or any Subsidiary thereofthe Surviving Corporation shall, so long and Parent shall cause the Surviving Corporation to, use reasonable best efforts to purchase comparable D&O Insurance for such six-year period with benefits and levels of coverage at least as favorable to the aggregate Indemnified Parties as provided in the Company’s existing policies as of the date of this Agreement), provided, however, that in no event shall Parent or the Surviving Corporation be required to expend for such policies an annual premium therefor would not be amount in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit 300% of the directors and officers of Parent or a separate policy provided annual premiums currently paid by the same insurer. If the existing D&O Insurance expiresCompany for such insurance; and, is terminated or canceled by the insurer or provided further that if the aggregate annual premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insuranceinsurance coverage exceed such amount, the maximum directors’ and officers’ liability insurance Surviving Corporation shall obtain a policy with the greatest coverage that can be obtained available for the remainder of a cost not exceeding such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premiumamount.
(de) In the event Parent, If Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving CorporationCorporation (including, as for clarity, the case may beSurviving Company, if applicable) shall assume all of the obligations set forth in this Section 6.116.13.
(ef) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 6.13 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties.
(g) The rights of the Indemnified Parties under this Section 6.13 shall be in addition to any rights such Indemnified Parties may have under the certificate of incorporation or by-laws of the Company or any of its Subsidiaries, their heirs and their representativesor under any applicable Contracts or Laws.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Andeavor), Merger Agreement (Marathon Petroleum Corp)
Indemnification; Directors’ and Officers’ Insurance. (ai) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect Parties agree that all rights to indemnification no more restrictive and advancement of expenses by the Parent or the Sub now existing in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate favor of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer of the Company, Parent or the Sub (when acting in such capacity) determined their capacities as directors and/or officers of the Effective Time (eachParent or the Sub, an Indemnified Party and, collectivelyas applicable, the “"Indemnified Parties”") as provided in (i) the Parent's or the Sub's respective Articles of Incorporation or By-Laws, or (ii) the indemnification agreements listed in the Disclosure Letter as in effect on the date thereof (the "Indemnification Agreements"), against any costs or expenses (including reasonable attorneys’ fees and expenses)shall, judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), in whole or in part based on or arising in whole or in part out of respect to matters existing or occurring at or prior to the Parent or Sub Effective Time, whether as applicable, continue in full force and effect, shall survive the Sub Merger and Parent Merger and shall continue in full force and effect thereafter until the date which is six (6) years from the Sub Effective Time or Parent Effective Time, as applicable; provided, however, in the event any claim or claims are asserted or claimed prior tothreatened within such period, at all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims.
(ii) Subject to the provisions of Section 6.2(f)(iii) below, after the Sub Effective Time or Parent Effective Time, as applicable, the Purchaser shall, subject to the further terms set forth herein, indemnify and hold harmless, to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person applicable law (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under indemnification), each Indemnified Party against any costs or expenses (including reasonable attorneys' fees 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, arising out of or pertaining to the DGCLtransactions contemplated by this Agreement (and whether commenced prior to or after the Sub Effective Time or the Parent Effective Time).
(c) Parent shall cause to be maintained, for a period of not less than six (6) years from after the Sub Effective Time or Parent Effective Time, as applicable, in each case regardless of by whom asserted and regardless of whether such claim, action, suit, proceeding or investigation arises out of, pertains to or results from, solely or in part, the Company’s current directors’ active, passive or concurrent negligence of any Indemnified Party; provided, however, in the event any claim or claims are asserted or threatened within such six-year period, all right to indemnification in respect of any such claim or claims shall continue until final disposition of any and officers’ all such claims. Any Indemnified Party wishing to claim indemnification under this Section 6.2(f)(ii), and notwithstanding the provisions set forth in the Parent's or the Sub's respective Articles of Incorporation or By-Laws, or in the Indemnification Agreements, upon learning of any such claim, action, suit, proceeding or investigation, such Indemnified Party shall promptly notify Purchaser thereof, but the failure to so notify shall not relieve Purchaser of any liability insurance policy it may have to such Indemnified Party if such failure does not materially prejudice the indemnifying party. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Sub Effective Time or the Parent Effective Time), (i) Purchaser shall have the right to assume the defense thereof and Purchaser 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 Purchaser fails to assume such defense or counsel for Purchaser advises that there are issues which raise conflicts of interest between the Parties, on the one hand, and the Indemnified Parties, on the other hand, or that there are additional defenses available to the Indemnified Parties which are not otherwise available to the Parties, the Indemnified Parties may retain counsel satisfactory to them, and the Purchaser shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that Purchaser shall be obligated pursuant to this paragraph (ii) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, in which case Purchaser need only pay for separate counsel to the extent necessary to resolve such conflict, (ii) the Indemnified Parties will cooperate in the defense of any such matter and (iii) Purchaser shall not be liable for any settlement effectuated without its prior written consent. Purchaser shall not settle any action or claim identified in this Section 6.2(f)(ii) in any manner that it provides coverage for events occurring would impose any liability on an Indemnified Party not paid by Purchaser or the Sub Surviving Corporation or the Parent Surviving Corporation without such Indemnified Party's prior written consent.
(iii) Notwithstanding any thing contained in paragraph (ii) of this Section 6.2(f), Purchaser shall not have any obligation hereunder to any Indemnified Party if the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law, or the conduct of the Indemnified Party relating to the matter for which indemnification is sought involved willful misconduct.
(iv) Parent and Sub shall maintain their respective existing officers' and directors' liability insurance ("D&O Insurance") for a period of three (3) years after the Sub Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereofParent Effective Time, as applicable, so long as the aggregate annual premium therefor would therefor, in the aggregate, is not be in excess of Four Million Dollars ($4,000,000) 150% of the last annual premium paid prior to the date hereof (the “"Maximum Premium”"); provided that Parent mayprovided, in lieu of maintaining such existing D&O Insurance as provided abovehowever, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If if the existing D&O Insurance expires, or is terminated or canceled cancelled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of insurance carrier during such D&O Insurancethree-year period, the maximum directors’ Parent and officers’ liability insurance coverage that Sub will use their commercially reasonable efforts to obtain as much D&O Insurance as can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(ca premium not in excess (on an annualized basis) shall in no event exceed of the Maximum Premium.
(dv) In To the event fullest extent not prohibited by applicable New York law or federal securities laws, Purchaser agrees to guarantee the payment and performance of the Parent's, Sub's, Acquisition Sub One's and Acquisition Sub Two's obligations under this Section 6.2(f). This Section 6.2(f) shall survive the Surviving Corporation closing of the transactions contemplated hereby and is intended to benefit each of the Indemnified Parties (each of whom shall be entitled to enforce this Section against the Parties). If any Party, or any of their respective successors or assigns (i) reorganizes or consolidates with or merges into any other Person and shall is not be the resulting, continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) liquidates, dissolves or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, prior to the extent necessarysuch action, proper provision shall will be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, such party assume the obligations of such party set forth in this Section 6.11Section.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 2 contracts
Samples: Merger Agreement (Xlconnect Solutions Inc), Merger Agreement (Intelligent Electronics Inc)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will Dimensional shall, or shall cause, the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the CompanyCompany and its Subsidiaries (in each case, (when acting in such capacity) ), determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL and Delaware Law, its certificate of incorporation and bylaws by-laws or any indemnification agreements in effect on the date hereof to indemnify such Person (and Parent the Surviving Corporation shall also advance expenses as incurred to the fullest extent that the Company would have been permitted under applicable law Delaware Law and its certificate of incorporation and by-laws in effect on the date hereof; provided that any determination required to be made with respect to whether an officer’s or director’s conduct complies with the Person standards set forth under the Company’s by-laws shall be made by independent counsel selected by the Indemnified Party (such independent counsel to whom expenses are advanced provides an undertaking be reasonably acceptable to repay such advances if it is ultimately determined that such Person is not entitled the Surviving Corporation). For the avoidance of doubt, the rights and obligations with respect to indemnification under and advancement of expenses set forth in this Section 7.10 shall apply to any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or in connection with (i) the DGCL)transactions contemplated by this Agreement and (ii) actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party.
(cb) Parent Prior to the Effective Time, the Company shall cause cause, and if the Company is unable to be maintaineddo so, Dimensional shall cause, the Surviving Corporation as of the Effective Time to, 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, and the Company’s existing fiduciary liability insurance policies (collectively, “D&O Insurance”), in each case for a claims reporting or discovery period of not less than at least six (6) years from and after the Effective Time, Time (the “Tail Policies”) 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 policy and fiduciary liability insurance with benefits and levels of coverage at least as favorable as the Company’s existing D&O Insurance with respect to the extent that it provides coverage for events matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the “D&O Insurance”) transactions or actions contemplated hereby). If the Company and the Surviving Corporation for all present and former directors and officers any reason fail to obtain such Tail Policies as of the Company Effective Time, the Surviving Corporation shall, and Dimensional shall cause the Surviving Corporation 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 hereof with benefits and levels of coverage at least as favorable as provided in the Company’s existing policies as of the date hereof, or the Surviving Corporation shall, and Dimensional shall cause the Surviving Corporation to, use reasonable best efforts to purchase comparable D&O Insurance for such six (6) year period with benefits and levels of coverage at least as favorable as provided in the Company’s existing policies as of the date hereof; provided, however, that in no event shall the Surviving Corporation be required to expend for any Subsidiary thereof, so long as the aggregate D&O Insurance required by this Section 7.10(b) an annual premium therefor would not be amount in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit 200% of the directors and officers of Parent or a separate policy provided annual premiums currently paid by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of Company for such D&O Insurance; and provided further that if the annual premiums of such insurance coverage exceed such amount, the maximum directors’ and officers’ liability insurance Surviving Corporation shall obtain a policy with the greatest coverage that can be obtained available for the remainder of a cost not exceeding such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premiumamount.
(dc) In the event Parent, If Dimensional or the Surviving Corporation or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge 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 shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent Dimensional or the Surviving Corporation, as the case may be, Corporation shall assume all of the obligations set forth in this Section 6.117.10.
(ed) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 7.10 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties.
(e) The rights of the Indemnified Parties under this Section 7.10 shall be in addition to any rights such Indemnified Parties may have under the certificate of incorporation or by-laws of the Company or any of its Subsidiaries, their heirs or under any applicable Contracts or Laws. All rights to indemnification and their representativesexculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the certificate of incorporation or by-laws of the Company or of any Subsidiary of the Company or any indemnification agreement between such Indemnified Party 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 Party.
Appears in 2 contracts
Samples: Merger Agreement (Dimensional Associates, LLC), Merger Agreement (Orchard Enterprises, Inc.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will King shall indemnify and hold harmless to the fullest extent as such individuals would be indemnified as of the date of this Agreement under applicable Law, Crown’s Organizational Documents and any indemnification agreements in effect as of the date of this Agreement, each present and former director and officer of the Company, (when acting in such capacity) determined as of the Effective Time) director and officer of Crown or any of its Subsidiaries or any Person who prior to or at the Effective Time served at the request of Crown or any of its Subsidiaries as a director or officer of another Person in which Crown or any of its Subsidiaries has an equity investment, in each case, when acting in such capacity (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees fees, costs and expenses), judgments, inquiries, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with with, arising out of or otherwise related to any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)Proceeding, in whole or in part based on or connection with, arising in whole or in part out of or otherwise related to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including in connection with (i) this Agreement or the Transactions, and (ii) actions to the fullest extent that the Company would have been permitted under the DGCL enforce this provision or any other indemnification or advancement right of any Indemnified Party, and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent King shall also advance expenses as incurred to the fullest extent permitted that such individual would have been entitled to under applicable law Law, Crown’s Organizational Documents and any indemnification agreements in effect as of the date of this Agreement; provided the that any Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification under the DGCL)indemnification.
(cb) Parent Prior to the Effective Time, Crown shall cause to be maintainedand, if Crown is unable to, King shall, as of the Effective Time, obtain and fully pay the premium for “tail” insurance policies for the extension of (i) the directors’ and officers’ liability coverage of Crown’s existing directors’ and officers’ insurance policies, and (ii) Crown’s existing fiduciary liability insurance policies, in each case for a claims reporting or discovery period of not less than six (6) years from and after the Effective Time, Time (the Company“Tail Period”) from one or more insurance carriers with the same or better credit rating as Crown’s current insurance carrier as of the date of this Agreement with respect to directors’ and officers’ liability insurance policy and fiduciary liability insurance (collectively, “D&O Insurance”) with terms, conditions, retentions and limits of liability that are at least as favorable to the extent that it provides coverage for events insureds as Crown’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). If Crown and King for any reason fail to obtain such “D&O Insurance”) for all present and former directors and officers tail” insurance policies as of the Company or any Subsidiary thereofEffective Time, so long as the aggregate premium therefor would not be King shall continue to maintain in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained effect for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for Tail Period the D&O Insurance in place as of the date of this Agreement with terms, conditions, retentions and limits of liability that are at least as favorable to the insureds as provided in Crown’s existing policies as of the date of this Agreement, or King shall purchase comparable D&O Insurance for the Tail Period with terms, conditions, retentions and limits of liability that are at least as favorable as provided in Crown’s existing policies as of the date of this Agreement; provided, that in no event shall the aggregate cost of the D&O Insurance exceed during the Tail Period 300% of the current aggregate annual premium paid by Crown for such purpose; and provided, further, that if the cost of such insurance coverage exceeds such amount, King shall obtain a policy with the greatest amount of D&O Insurance available for a cost not exceeding such amount.
(c) Any Indemnified Party wishing to claim indemnification under this Section 7.14, upon learning of any such Proceeding, shall promptly notify King thereof in writing, but the failure to so notify shall not relieve King of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the indemnifying party. In the event of any Proceeding: (i) King shall have the right to assume the defense thereof (it being understood that by electing to assume the defense thereof, King will not be deemed to have waived any right to object to the Indemnified Party’s entitlement to indemnification hereunder with respect thereto or assumed any liability with respect thereto), except that if King elects not to assume such defense or legal counsel or the Indemnified Party advises that there are issues which raise conflicts of interest between King and the Indemnified Party, the Indemnified Party may retain legal counsel satisfactory to them, and King shall pay all reasonable and documented fees, costs and expenses of such legal counsel for the Indemnified Party promptly as statements therefor are received; provided, however, that King shall be obligated pursuant to this Section 6.11(c7.14(c) to pay for only one firm of legal counsel for all Indemnified Parties in any jurisdiction unless the use of one legal counsel for such Indemnified Parties would present such legal counsel with a conflict of interest (provided, that the fewest number of legal counsels necessary to avoid conflicts of interest shall be used); (ii) the Indemnified Parties shall cooperate in no event exceed the Maximum Premiumdefense of any such matter if King elects to assume such defense, and King shall cooperate in the defense of any such matter if King elects not to assume such defense; (iii) the Indemnified Parties shall not be liable for any settlement effected without their prior written consent if King elects to assume such defense and King shall not be liable for any settlement effected without its prior written consent if King elects not to assume such defense; (iv) King shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnified action of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law; and (v) all rights to indemnification in respect of any such Proceedings shall continue until final disposition of all such Proceedings.
(d) In During the event ParentTail Period, all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Surviving Corporation Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the Organizational Documents of Crown and its Subsidiaries or any indemnification agreement between such Indemnified Party and Crown or any of its Subsidiaries, in each case, as in effect on the date of this Agreement, shall survive the Transactions unchanged and shall not be amended, restated, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(e) If King or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity Person of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, King shall assume all of the obligations set forth in this Section 6.117.14.
(ef) The provisions rights of the Indemnified Parties under this Section 6.11 7.14 shall survive consummation of the Merger and are in addition to the any rights that an such Indemnified Party Parties may have under the certificate Organizational Documents of incorporation, bylaws or agreements of or with the Company Crown or any of its Subsidiaries Subsidiaries, or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity indemnification agreements or other obligations under this applicable Contracts of Crown or Laws.
(g) This Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are 7.14 is intended to be for the benefit of, and from and after the Effective Time shall be enforceable by, each of the Indemnified Parties, their heirs and their representativeswho shall be third-party beneficiaries of this Section 7.14.
Appears in 2 contracts
Samples: Merger Agreement (C&J Energy Services, Inc.), Merger Agreement (Keane Group, Inc.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will each of First Financial and the Surviving Corporation shall indemnify and hold harmless each present and former director director, officer or employee of MainSource and officer of the Companyits Subsidiaries (in each case, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “MainSource Indemnified Parties”), ) against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole whether arising before or in part based on or after the Effective Time, arising in whole or in part out of the fact that such person is or was a director, officer or employee of MainSource or any of its Subsidiaries and pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after including the Effective Time, transactions contemplated by this Agreement to the fullest same extent that the Company would have been permitted under the DGCL and its certificate as such persons are indemnified as of incorporation and bylaws in effect on the date hereof of this Agreement by MainSource pursuant to indemnify such Person (the MainSource Articles, MainSource Bylaws, the governing or organizational documents of any Subsidiary of MainSource and Parent any indemnification agreements in existence as of the date hereof; and First Financial and the Surviving Corporation shall also advance expenses as incurred by such MainSource Indemnified Party to the fullest same extent permitted under applicable law provided as such persons are entitled to advancement of expenses as of the Person date of this Agreement by MainSource pursuant to the MainSource Articles, MainSource’s Bylaws, the governing or organizational documents of any Subsidiary of MainSource and any indemnification agreements in existence as of the date hereof; provided, that, if required, the MainSource Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person MainSource Indemnified Party is not entitled to indemnification under the DGCL)indemnification.
(cb) Parent shall cause to be maintained, for For a period of not less than six (6) years from after the Effective Time, the Company’s Surviving Corporation shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance policy maintained by MainSource (provided, that the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions which are no less advantageous to the extent that it provides coverage for events occurring prior insured) with respect to claims against the Effective Time (the “D&O Insurance”) for all present and former officers and directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries arising from facts or under applicable law. Parent agrees to pay all costs and expenses events which occurred at or before the Effective Time (including the transactions contemplated by this Agreement); provided, however, that the Surviving Corporation shall not be obligated to expend, on an annual basis, an amount in excess of 300% of the current annual premium paid as of the date hereof by MainSource for such insurance (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then the Surviving Corporation shall cause to be maintained policies of insurance which, in the Surviving Corporation’s good faith determination, provide the maximum coverage available at an annual premium equal to the Premium Cap. In lieu of the foregoing, MainSource, in consultation with, but only upon the consent of First Financial, may (and at the request of First Financial, MainSource shall use its reasonable fees best efforts to) obtain at or prior to the Effective Time a six-year “tail” policy under MainSource’s existing directors and expenses of counsel) officers insurance policy providing equivalent coverage to that described in the preceding sentence if and to the extent that the same may be incurred by any Indemnified Party obtained for an amount that, in successfully enforcing the indemnity or other obligations under this Section 6.11. aggregate, does not exceed the Premium Cap.
(c) The provisions of this Section 6.11 6.7 shall survive the Merger Effective Time and are intended to be for the benefit of, and shall be enforceable by, each MainSource Indemnified Party and his or her heirs and representatives. If the Surviving Corporation or any of its successors or assigns will consolidate with or merge into any other entity and not be the continuing or surviving entity of such consolidation or merger, transfer all or substantially all of its assets or deposits to any other entity or engage in any similar transaction, then in each case, the Surviving Corporation will cause proper provision to be made so that the successors and assigns of the Indemnified Parties, their heirs and their representativesSurviving Corporation will expressly assume the obligations set forth in this Section 6.7.
Appears in 2 contracts
Samples: Merger Agreement (First Financial Bancorp /Oh/), Merger Agreement (Mainsource Financial Group)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, each of Parent agrees that it will and the Surviving Company shall jointly and severally: (i) indemnify and hold harmless each present and former individual who served as a director and or officer of the Company, (when acting in such capacity) determined as of Company or its Subsidiaries prior to the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”) (in such Person’s capacity as such and not as shareholders of the Company or any of its Subsidiaries) to the fullest extent required, authorized or permitted by Minnesota law, as now or hereafter in effect, in connection with any Claim (as defined below) and any judgments, fines (including excise taxes), against any costs or expenses penalties and amounts paid in settlement (including reasonable attorneys’ fees all interest, assessments and expenses), other charges paid or payable in connection with or in respect of such judgments, fines, losses, penalties or amounts paid in settlement claimssettlement) resulting therefrom; and (ii) promptly pay on behalf of or, damages within thirty (30) days after any request for advancement, advance to each of the Indemnified Parties, to the fullest extent required, authorized or liabilities permitted by Minnesota law, as now or hereafter in effect, any Expenses (collectively, “Costs”as defined below) incurred in defending, serving as a witness with respect to or otherwise participating in any Claim in advance of the final disposition of such Claim, including payment on behalf of or advancement to the Indemnified Party of any Expenses incurred by such Indemnified Party in connection with enforcing any claimrights with respect to such indemnification and/or advancement, in each case without the requirement of any bond or other security, but in the case of advancement of Expenses upon receipt of an undertaking, to the extent required by applicable law, from such Indemnified Party to repay such advanced Expenses if it is determined by a court of competent jurisdiction in a final order that such Indemnified Party was not entitled to indemnification hereunder with respect to such Expenses. In the event any Claim is brought against any Indemnified Party, Parent and the Surviving Company shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter, provided that neither Parent nor the Surviving Company shall settle, compromise or consent to the entry of any judgment in any Claim (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent the claimant seeks any non-monetary relief (including any admission of liability or guilt) from such Indemnified Party. Notwithstanding the foregoing, an Indemnified Party shall be entitled to control the defense of any action, suit, investigation or proceeding with counsel of its own choosing reasonably acceptable to Parent and Parent and the Surviving Company shall cooperate in the defense thereof; provided, that Parent shall not be liable for the fees of more than one counsel for all Indemnified Parties, other than local counsel, unless a conflict of interest shall be caused thereby. The indemnification and advancement obligations of Parent and the Surviving Company pursuant to this Section 7.6(a) shall extend to acts or omissions occurring at or before the Effective Time and any Claim relating thereto (including with respect to any acts or omissions occurring in connection with the approval of this Agreement by the Company Board and the Company’s shareholders and the consummation of the transactions contemplated hereby and any Claim relating thereto) and all rights to indemnification and advancement conferred hereunder shall continue as to an individual who has ceased to be a director or officer of the Company or its Subsidiaries at or prior to the Effective Time and shall inure to the benefit of such individual’s heirs, executors and personal and legal representatives. In connection with any determination as to whether the Indemnified Parties are entitled to the benefits of this Section 7.6, the burden of proof shall be on Parent and the Surviving Company to establish that an Indemnified Party is not so entitled. As used in this Section 7.6(a), (A) the term “Claim” means any threatened, asserted, pending or completed action, suit or proceeding, or any inquiry or investigation, actual whether instituted by the Company, any Governmental Entity or threatenedany other party, or any other matter for which indemnification is required pursuant to Section 302A.521 of the MBCA, that any Indemnified Party in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative administrative, investigative or investigative (a “Claim”)other, in whole including any arbitration or in part based on or other alternative dispute resolution mechanism, arising in whole or in part out of or pertaining to matters existing that relate to such Indemnified Party’s duties or occurring service as a director or officer of the Company, any of its Subsidiaries, any employee benefit plan maintained by any of the foregoing at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL Time and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL).
(c) Parent shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be at the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with request the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay Subsidiaries; and (B) the term “Expenses” means reasonable attorneys’ fees and all costs other costs, expenses and expenses obligations (including reasonable fees experts’ fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and expenses of counselbinding costs, as well as telecommunications, postage and courier charges) that may paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to investigate, defend, be incurred by a witness in or participate in, any Indemnified Party in successfully enforcing the indemnity or other obligations under Claim for which indemnification is authorized pursuant to this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended 7.6(a), including any action relating to be a claim for the benefit of, and shall be enforceable by, each of the indemnification or advancement brought by an Indemnified Parties, their heirs and their representativesParty.
Appears in 2 contracts
Samples: Merger Agreement (Enventis Corp), Merger Agreement (Consolidated Communications Holdings, Inc.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate Without limiting any additional rights that any officer or director may have under any employment agreement or Company Benefit Plan or under the Company’s Certificate of incorporation Incorporation or by-laws, from the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs, each of Parent and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope shall, jointly and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreementseverally, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director and or officer of the Company, Company or any of its Subsidiaries (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs or expenses (and expenses, including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities disbursements (collectively, “Costs”) ), incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior pertaining to the Effective Timefact that the Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries (including this Agreement and the transactions contemplated thereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL for officers and its certificate directors of incorporation Delaware corporations. Parent and bylaws in effect on the date hereof to indemnify such Person (Surviving Corporation shall, jointly and Parent shall also severally, advance expenses as incurred to in the fullest extent permitted under applicable law provided defense of any such claim, action, suit, proceeding or investigation by the Surviving Corporation promptly after receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, however, that any Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL)indemnification.
(cb) The Certificate of Incorporation and By-laws of the Surviving Corporation shall contain, and Parent shall cause the Certificate of Incorporation and By-laws of the Surviving Corporation to be maintainedso contain, for a period provisions no less favorable with respect to indemnification, advancement of not less than six (6) years from the Effective Time, the Company’s current directors’ expenses and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all exculpation of present and former directors and officers of the Company and its Subsidiaries than are presently set forth in the certificate of incorporation and by-laws of the Company which provision shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any Subsidiary thereofmanner that would adversely affect the rights hereunder of any Indemnified Party.
(c) Notwithstanding anything to the contrary set forth herein, at any time prior to the Effective Time the Company shall be permitted to purchase a six-year “tail” insurance policy covering officers and directors in the amount of coverage as set forth in Section 7.13(c)(1) of the Company Disclosure Schedule that provides for coverage substantially similar to the coverage currently provided under the Company’s policy with respect to claims existing or occurring at or prior to the Effective Time (including the transactions contemplated by this Agreement) for a premium not in excess of the amount set forth in Section 7.13(c)(1) of the Company Disclosure Schedule, provided, however, that the Company shall keep Parent apprised of its efforts to obtain such coverage and the terms thereof and prior to purchasing such policy, the Company shall afford Parent the opportunity to purchase a substitute policy on terms no less favorable to its directors and officers, as determined by the Company, by providing such policy and commitment to the Company for its review at least 10 business days prior to the Effective Time. If the substitute policy is determined to be acceptable by the Company, only Parent shall purchase such policy prior to the Effective Time on behalf of the Company and its officers and directors. If for any reason the Company or Parent fails or is unable to purchase such a tail policy, the following provisions shall apply. Subject to the next sentence, the Surviving Corporation shall maintain, and Parent shall cause the Surviving Corporation to maintain, at no expense to the beneficiaries, in effect for six (6) years from the Effective Time the current policies of the directors’ and officers’ liability insurance maintained by the Company with respect to matters existing or occurring at or prior to the Effective Time (including the transactions contemplated by this Agreement) so long as the aggregate annual premium therefor would not be in excess of Four Million Dollars 250% of the annual premium paid by the Company in its most recent fiscal year, which premium is set forth in Section 7.13(c)(2) of the Company Disclosure Schedule ($4,000,000) (250% of such annual premium, the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the Company’s existing D&O Insurance insurance expires, is terminated or canceled by the insurer during such six-year period or if the aggregate premium would exceed exceeds the Maximum Premium, Parent the Surviving Corporation shall obtain, in lieu of such D&O Insuranceand Parent shall cause the Surviving Corporation to obtain, the maximum as much directors’ and officers’ liability insurance coverage that as can be obtained for the remainder of such period by paying for an annualized premium not in excess of the Maximum Premium, provided that aggregate premiums payable on terms and conditions no less advantageous to the Indemnified Party than the Company’s existing directors’ and officers’ liability insurance. Parent shall and shall cause the Surviving Corporation to honor and perform under all indemnification agreements entered into by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum PremiumCompany or any of its Subsidiaries.
(d) In Notwithstanding anything herein to the event Parentcontrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Closing) is made against any Indemnified Party on or prior to the sixth anniversary of the Effective Time, the Surviving Corporation or any provisions of their respective successors or assigns (i) consolidates with or merges into any other Person and this Section 7.13 shall not be continue in effect until the continuing or surviving corporation or entity final disposition of such consolidation claim, action, suit, proceeding or merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11investigation.
(e) The provisions of this Section 6.11 7.13 are intended to be in addition to the rights that an Indemnified Party may have under otherwise available to the certificate current officers and directors of incorporation, bylaws or agreements of or with the Company by law, charter, statute, by-law or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs agreement, and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be operate for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representativesrepresentatives in accordance with Section 10.8 hereof.
(f) In the event Parent or Merger Sub or the Surviving Corporation or any of their 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 Parent, Merger Sub or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 7.13, provided the Surviving Corporation shall not be relieved from such obligation. In addition, the Surviving Corporation shall not distribute, sell, transfer or otherwise dispose of any of its assets in a manner that would reasonably be expected to render the Surviving Corporation unable to satisfy its obligations under this Section 7.13.
Appears in 2 contracts
Samples: Merger Agreement (Computer Associates International Inc), Merger Agreement (Niku Corp)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify Novartis and the Surviving Corporation shall jointly and severally, to the fullest extent permitted by applicable Law, indemnify, defend and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of all individuals who at the Effective Time were directors or officers of the Company (each, an “Indemnified Party Person” and, collectively, the “Indemnified PartiesPersons”), ) against any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole arising out of, relating to or in part based on connection with (i) any acts or arising in whole omissions occurring or in part out of matters existing or occurring at or alleged to occur prior to the Effective TimeTime in their capacities as officers or directors of the Company or any of its Subsidiaries or taken by them at the request of the Company or any of its Subsidiaries (including, whether asserted without limitation, acts or claimed prior toomissions in connection with such persons serving as an officer, director or other fiduciary in any entity if such service was at the request or for the benefit of the Company or any of its Subsidiaries) or (ii) the adoption and approval of this Agreement, the Merger or the other transactions contemplated by this Agreement or arising out of or pertaining to the transactions contemplated by this Agreement. Without limiting the foregoing, Novartis and the Surviving Corporation shall (A) cause the certificate of incorporation and by-laws of the Surviving Corporation to include for a period of six years, at a minimum, the indemnification and exculpation provisions of the certificate of incorporation and by-laws of the Company as in effect at the Effective Time and shall cause such provisions not to be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any Indemnified Person who was entitled to rights thereunder as of the Effective Time and (B) for a period of six years after the Effective Time, to honor, continue in effect and discharge the fullest extent that Company’s obligations under all indemnification agreements of the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws Subsidiaries with any Indemnified Persons in effect on as of the date hereof without any change that is adverse to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL)Indemnified Persons.
(cb) Parent The Surviving Corporation shall, and Novartis shall cause to be maintainedthe Surviving Corporation to, for a period of not less than six (6) years from the Effective Time, maintain the Company’s current and its Subsidiaries’ existing directors’ and officers’ liability insurance policy to the extent that it provides coverage (“D&O Insurance”) (including for events occurring acts or omissions described in clauses (i) and (ii) in Section 7.9(a)) covering each such Indemnified Person covered immediately prior to the Effective Time (by the “D&O Insurance”) Company’s officers’ and directors’ liability insurance policy on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date hereof for all present and former directors and officers a period of six years after the Company or Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend in any Subsidiary thereof, so long as the aggregate premium therefor would not be one year an amount in excess of Four Million Dollars 250% of the current annual premium paid by the Company for such insurance ($4,000,000) (such 250% amount, the “Maximum Annual Premium”); provided provided, further, that Parent mayif the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Annual Premium. For the avoidance of doubt, Novartis and the Surviving Corporation may satisfy their foregoing obligations under this Section 7.9(b) by including the coverage required by the foregoing sentence in lieu Parent’s or Novartis’ existing group insurance policies. In addition, at Novartis’ request and sole expense, the Company will purchase a six-year “tail” prepaid policy to take effect as of maintaining such existing D&O Insurance as provided above, cause the Effective Time on terms and conditions no less favorable coverage to be provided under any policy maintained for the benefit Indemnified Persons than those of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be maintained by the Company as of the date hereof. If such “tail” prepaid policies have been obtained by the Company prior to the Closing, the Surviving Corporation shall, and Novartis shall cause the Surviving Corporation to, maintain such policies in full force and effect for a period of six years after the remainder of such period by paying Effective Time, and continue to honor the Maximum Premiumrespective obligations thereunder, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to and all other obligations under this Section 6.11(c7.9(b) shall in no event exceed the Maximum Premiumbe deemed satisfied.
(dc) In the event Parent, If the Surviving Corporation or any of their respective its successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation consideration or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume all of the obligations set forth in this Section 6.117.9.
(ed) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 7.9 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, Parties and their heirs and their legal representatives.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Novartis Ag), Merger Agreement (Chiron Corp)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent Praxair agrees that it will indemnify and hold harmless each present and former director director, officer and officer employee of the Company, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified "Indemni- fied Parties”"), against any costs or expenses (including reasonable attorneys’ fees and expensesattor- neys' fees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “"Costs”") incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under Delaware law and the DGCL and its certificate of incorporation and bylaws Company Charter or the Company's by- laws in effect on the date hereof to indemnify such Person (and Parent Praxair shall also advance expenses as incurred to the fullest extent permitted under applicable law provided law; 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 under the DGCLindemnification).
(c) Parent shall cause ; and provided, further, that, any determination required to be maintainedmade with respect to whether an officer's or director's conduct complies with the standards set forth under Delaware law and the Company Charter and the Company's by-laws shall be made by counsel selected by the Surviving Corporation. Purchaser agrees that all rights to indemnification in favor of any present or former employee, agent, director or officer of the Company and its subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and the Company or any of its subsidiaries, or otherwise in effect on the date hereof shall survive the Merger and shall continue in full force and effect for a period of not less than six (6) five years from the Effective Time; provided that in the event any claim or claims are asserted or made within such five-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims.
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 7.9, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Praxair thereof. An Indemnified Party may select counsel to represent him or her in connection with any of the foregoing, which counsel shall be reasonably acceptable to Purchaser, and Purchaser and the Company will cooperate in the defense of any such matter; provided, however, that neither Purchaser nor the Company shall be liable for any settlement effected without its written consent and provided, further, that neither Purchaser nor the Company shall be obligated to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single matter except to the extent that, in the opinion of counsel for the Indemnified Parties, two or more of such Indemnified Parties have conflicting interests in the outcome of such matter. Praxair shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law.
(c) Praxair agrees that it shall use all reasonable efforts to maintain the Company’s current 's existing officers, and directors’ and officers’ , liability insurance policy and employee benefit plan fiduciary liability insurance ("D&0 Insurance") for a period of not less than five years from and after the Effective Time; provided, (i) that Praxair may substitute therefor policies of substantially similar coverage and amounts containing terms no less advantageous to the extent that it provides coverage for events occurring prior to the Effective Time Indemnified Parties and (the “D&O Insurance”ii) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If if the existing D&O Insurance expiresexpires or is canceled during such period, is terminated or canceled by Praxair will use reasonable efforts to obtain substantially similar D&O Insurance to the insurer or if extent available; provided, further, that, notwithstanding clauses (i) and (ii) of this subsection 7.9(c), in the event that the aggregate annual premiums for D&O Insurance at any time during such five year period shall exceed 175% of the per annum rate of premium would exceed currently paid (the Maximum Premium, Parent shall obtain, in lieu of "Base Rate") by Company and its Subsidiaries for such D&O InsuranceInsurance on the date of this Agreement, then Praxair shall only be obligated to provide the maximum directors’ and officers’ liability insurance coverage that can shall then be obtained for available at an annual premium equal to 175% of the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum PremiumBase Rate.
(d) In the event Parent, If the Surviving Corporation or any of their respective its successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, thencorporation or other entity, then and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume all of the obligations set forth in the last two sentences of Section 7.7(c) and this Section 6.117.9.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 7.9 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 2 contracts
Samples: Merger Agreement (Px Acquisition Corp), Merger Agreement (Px Acquisition Corp)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will the Surviving Entity shall indemnify and hold harmless and shall advance expenses as incurred, in each case, to the fullest extent permitted by applicable law, the IBKC Articles, the IBKC Bylaws and the governing or organizational documents of any IBKC Subsidiary, each present and former director director, officer or employee of IBKC and officer of the Companyits Subsidiaries (in each case, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “IBKC Indemnified Parties”), ) against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (investigative, whether arising before or after the Effective Time, arising out of, or pertaining to, the fact that such person is or was a “Claim”)director, in whole officer or in part based on employee of IBKC or arising in whole any of its Subsidiaries or in part out is or was serving at the request of matters IBKC or any of its Subsidiaries as a director or officer of another person and pertaining to matters, acts or omissions existing or occurring at or prior to the Effective Time, whether asserted including matters, acts or claimed prior toomissions occurring in connection with the approval of this Agreement and the transactions contemplated by this Agreement; provided, at or after that in the Effective Timecase of advancement of expenses, to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person any IBKC Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person IBKC Indemnified Party is not entitled to indemnification. The Surviving Entity shall reasonably cooperate with the IBKC Indemnified Parties, and the IBKC Indemnified Parties shall reasonably cooperate with the Surviving Entity, in the defense of any such claim, action, suit, proceeding or investigation. Without limiting the indemnification under and other rights provided in this clause (a), all rights to indemnification and all limitations on liability existing in favor of the DGCL)IBKC Indemnified Parties as provided in any indemnification agreement in existence on the date of this Agreement shall survive the Merger and shall continue in full force and effect to the fullest extent permitted by law, and shall be honored by the Surviving Entity and its Subsidiaries or their respective successors as if they were the indemnifying party thereunder, without any amendment thereto.
(cb) Parent shall cause to be maintained, for For a period of not less than six (6) years from after the Effective Time, the Company’s Surviving Entity shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance policy maintained by IBKC (provided, that the Surviving Entity may substitute therefor policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions that are no less advantageous to the extent insured) with respect to claims against the present and former officers and directors of IBKC or any of its Subsidiaries arising from facts or events which occurred at or before the Effective Time (including the approval of the transactions contemplated by this Agreement); provided, however, that it provides the Surviving Entity shall not be obligated to expend, on an annual basis, an amount in excess of 300% of the current annual premium paid as of the date hereof by IBKC for such insurance (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then the Surviving Entity shall cause to be maintained policies of insurance which, in the Surviving Entity’s good faith determination, provide the maximum coverage for events occurring available at an annual premium equal to the Premium Cap. In lieu of the foregoing, First Horizon or IBKC, in consultation with, but only upon the consent, of First Horizon, may (and at the request of First Horizon, IBKC shall use its reasonable best efforts to) obtain at or prior to the Effective Time a six (the 6)-year “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such tail” policy under IBKC’s existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance policy providing equivalent coverage to that can described in the preceding sentence if and to the extent that the same may be obtained for an amount that, in the remainder aggregate, does not exceed the Premium Cap.
(c) The obligations of such period by paying the Maximum PremiumSurviving Entity, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to First Horizon or IBKC under this Section 6.11(c) 6.7 shall not be terminated or modified after the Effective Time in no event exceed a manner so as to adversely affect any IBKC Indemnified Party or any other person entitled to the Maximum Premiumbenefit of this Section 6.7 without the prior written consent of the affected IBKC Indemnified Party or affected person.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 6.7 shall survive the Merger Effective Time and are intended to be for the benefit of, and shall be enforceable by, each IBKC Indemnified Party and his or her heirs and representatives. If the Surviving Entity or any of its successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving entity of such consolidation or merger, or (ii) transfers all or substantially all of its assets or deposits to any other person or engages in any similar transaction, then in each such case, the Surviving Entity will cause proper provision to be made so that the successors and assigns of the Indemnified Parties, their heirs and their representativesSurviving Entity will expressly assume the obligations set forth in this Section 6.7.
Appears in 2 contracts
Samples: Merger Agreement (First Horizon National Corp), Merger Agreement (Iberiabank Corp)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate For a period of incorporation six years after the Effective Time (unless otherwise required by applicable Law), the charter and bylaws of the Surviving Corporation Entity and its Subsidiaries shall contain provisions no less favorable with respect to the exculpation of, indemnification no more restrictive in scope of and no less favorable advancement of expenses to the Indemnified Parties (as defined below) as directors, officers, employees and agents than those set forth in the certificate of incorporation and bylaws Company Charter or Company Bylaws (or equivalent organizational documents) of the Company (or the relevant Subsidiary) as in effect on the date hereof; provided, however, that if any claim or claims are asserted against any individual entitled to the protections of such provisions within such six-year period, such provisions shall not be modified until the final disposition of any such claims. Parent and the Surviving Entity shall, jointly and severally, exculpate, indemnify and hold harmless, to the fullest extent provided in the Company Charter or Company Bylaws or the organizational documents of any Subsidiary, as applicable, any indemnification agreement or under any applicable Laws, in each case, as in effect on the date of this Agreement, which provisions Agreement (and Parent shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior also advance expenses as incurred to the Effective Time (including, without limitation, the transactions contemplated by this Agreementfullest extent permitted under applicable Law), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as Company or any of the Effective Time its Subsidiaries (each, an Indemnified Party and, collectively, the “Indemnified PartiesPerson”), ) against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, obligations, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”formal or informal), in whole and to the extent of their capacities as such and not as stockholders and/or optionholders of the Company or in part based on its Subsidiaries (including rights relating to advancement of expenses and indemnification rights to which such persons are entitled because they are serving as a director or arising in whole officer of another entity at the request of the Company or in part out any of matters existing or occurring its Subsidiaries) at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including the transactions contemplated by this Agreement; provided, however, that any determination required to be made with respect to whether an Indemnified Person’s conduct complies with the fullest extent that standards set forth under the applicable Law, the Company would have been permitted under Charter or Company Bylaws or the DGCL organizational documents of any Subsidiary, as applicable, or any such agreement, as the case may be, shall be made by independent legal counsel jointly selected by such Indemnified Person and its certificate Parent; provided, further, that (i) nothing in this Section 8.9 shall impair any rights of incorporation any Indemnified Person and bylaws in effect on (ii) neither the date hereof to indemnify such Person (and Surviving Entity nor Parent shall also advance expenses as incurred be liable for any settlement effected without the prior written consent of the Surviving Entity (which consent shall not be unreasonably withheld, delayed or conditioned). Without limiting the generality of the preceding sentence, if any Indemnified Person becomes involved in any actual or threatened action, suit, claim, proceeding or investigation covered by this Section 8.9 after the Effective Time, Parent shall, or shall cause the Company to, to the fullest extent permitted under applicable law provided by Law, promptly advance to such Indemnified Person his or her legal or other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to the providing by such Indemnified Person to whom expenses are advanced provides of an undertaking to repay such advances if it is ultimately determined reimburse all amounts so advanced in the event of a non-appealable determination of a court of competent jurisdiction that such Indemnified Person is not entitled to indemnification under the DGCL)indemnification.
(cb) Parent Prior to the Effective Time, the Company shall cause purchase a “tail” insurance policy (which policy by its express terms shall survive the Merger), of at least the same coverage and amounts and containing terms and conditions that are no less favorable to be maintainedthe directors and officers of the Company as the Company’s and the Subsidiaries’ existing policy or policies, for the benefit of the current and former officers and directors of the Company and each Subsidiary with a claims period of not less than six (6) years from the Effective Time, the Company’s current Time with respect to directors’ and officers’ liability insurance policy to the extent for claims arising from facts or events that it provides coverage for events occurring occurred on or prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereofTime; provided, so long as however, that in no event shall the aggregate premium therefor would not be in excess of Four Million Dollars payable for such “tail” insurance policies for its entire period exceed $4,500,000 ($4,000,000) (such amount being the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, Company is terminated unable to obtain the “tail” insurance described in the first sentence of this Section 8.9(b) for an amount equal to or canceled by the insurer or if the aggregate premium would exceed less than the Maximum Premium, Parent the Company shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability be entitled to obtain as much comparable “tail” insurance coverage that can be obtained as possible for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant an amount equal to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(dc) In the event Parent, If Parent or the Surviving Corporation Entity or any of their respective its successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or shall cease to continue to exist for any reason or (ii) transfers or conveys shall transfer all or substantially all a majority (measured by value) of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving CorporationCompany, as the case may beapplicable, shall assume all of the obligations set forth in this Section 6.118.9. In addition, the Surviving Entity shall not distribute, sell, transfer or otherwise dispose of any of its assets in a manner that would reasonably be expected to render the Surviving Entity unable to satisfy its obligations under this Section 8.9.
(ed) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 8.9 are intended to be for the express benefit of, and shall be enforceable by, each Indemnified Person (who are intended to be third party beneficiaries of this Section 8.9), his or her heirs and his or her personal representatives, shall be binding on all successors and assigns of Parent, the Company and the Surviving Entity and shall not be amended in a manner that is adverse to the Indemnified Persons (including their successors, assigns and heirs) without the prior written consent of the Indemnified PartiesPerson (including the successors, their heirs assigns and their representativesheirs) affected thereby. The exculpation and indemnification provided for by this Section shall not be deemed to be exclusive of any other rights to which an Indemnified Person is entitled, whether pursuant to applicable Law, contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (CNL Hotels & Resorts, Inc.), Merger Agreement (Ashford Hospitality Trust Inc)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, each of Parent and the Surviving Corporation agrees that it will indemnify and hold harmless each present and former director and officer of the CompanyCompany or any of its Subsidiaries (in each case, (when acting in such capacity) ), determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or expenses (including in connection with enforcing the indemnity and other obligations referred to in this Section 6.11 and including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL Delaware Law and its certificate of incorporation and bylaws or by-laws in effect on the date hereof of this Agreement to indemnify such Person (and Parent or the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under applicable law Law; 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); and provided, further, that any determination required to be made with respect to whether an Indemnified Party’s conduct complies with the standards set forth under Delaware Law and the Company’s certificate of incorporation and by-laws shall be made by independent counsel selected by the Surviving Corporation.
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 6.11, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof, but the DGCLfailure to so notify shall not relieve Parent or the Surviving Corporation of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the indemnifying party. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) Parent or the Surviving Corporation shall have the right to assume the defense thereof and Parent and the Surviving Corporation shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Parent or the Surviving Corporation elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Parent or the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and Parent or the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that Parent and the Surviving Corporation shall be obligated pursuant to this paragraph (b) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, provided that the fewest number of counsels necessary to avoid conflicts of interest shall be used; (ii) the Indemnified Parties will cooperate in the defense of any such matter, and (iii) Parent and the Surviving Corporation shall not be liable for any settlement effected without their prior written consent; and provided, further, that Parent and the Surviving Corporation shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law.
(c) Parent shall cause Prior to be maintained, for a period of not less than six (6) years from the Effective Time, the Company shall and, if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to obtain and fully pay for “tail” insurance policies (providing only for the Side A coverage for Indemnified Parties where the existing policies also include Side B coverage for the Company) with a claims period of 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 policy 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 the extent that it provides coverage for events matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the “D&O Insurance”transactions or actions contemplated hereby); provided, however, that in no event shall the Company expend for such policies a premium amount in excess of the amount set forth in Section 6.11(c) for all present and former directors and officers of the Company Disclosure Schedule. 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 of this Agreement with benefits and levels of coverage at least as favorable as provided in the Company’s existing policies as of the date of this Agreement, or any Subsidiary thereofthe Surviving Corporation shall, so long and Parent shall cause the Surviving Corporation to, use reasonable best efforts 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 Parent or the Surviving Corporation be required to expend for such policies an aggregate premium therefor would not be amount in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit 300% of the directors and officers of Parent or a separate policy provided annual premiums currently paid by the same insurer. If the existing D&O Insurance expiresCompany for such insurance; and, is terminated or canceled by the insurer or provided further that if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu premiums of such D&O Insuranceinsurance coverage exceed such amount, the maximum directors’ and officers’ liability insurance Surviving Corporation shall obtain a policy with the greatest coverage that can be obtained available for the remainder of a cost not exceeding such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premiumamount.
(d) In the event Parent, If Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume all of the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their Parties and his or her heirs and their or representatives.
(f) The rights of the Indemnified Parties under this Section 6.11 shall be in addition to any rights such Indemnified Parties may have under the certificate of incorporation or by-laws of the Company or any of its Subsidiaries, or under any applicable Contracts or Laws.
(g) The obligations of Parent and the Surviving Corporation under this Section 6.11 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party to whom this Section 6.11 applies unless (i) such termination or modification is required by applicable Law or (ii) the affected Indemnified Party shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnified Party to whom this Section 6.11 applies shall be a third party beneficiary of this Section 6.11).
Appears in 2 contracts
Samples: Merger Agreement (Medicis Pharmaceutical Corp), Merger Agreement (Valeant Pharmaceuticals International, Inc.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this AgreementNewco agrees that, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From from and after the Effective Time, Parent agrees that it will cause the Surviving Corporation for a period of six years from the Effective Time to indemnify and hold harmless each past and present and former director and officer of the CompanyStratex or any of its Subsidiaries (in each case, (when acting for acts or failures to act in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “D&O Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company Stratex would have been permitted under the DGCL Delaware law and its certificate of incorporation and or bylaws as in effect on the date hereof of this Agreement to indemnify such Person (and Parent Newco shall also advance expenses as incurred to the fullest extent permitted under applicable law provided Law; provided, however, 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).
(b) Any D&O Indemnified Party wishing to claim indemnification under paragraph 9.18 of this Section 9.18, shall notify Newco promptly after learning of any such claim, action, suit, proceeding or investigation. In the DGCLevent of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) Newco shall have the right to assume the defense thereof and, if Newco agrees to assume such defense, Newco shall not be liable to such D&O Indemnified Parties for any legal expenses of such D&O Indemnified Parties’ counsel or any other expenses incurred by such D&O Indemnified Parties after Newco assumes such defense, (ii) the D&O Indemnified Parties will cooperate, at Newco’s expense, in the defense of any such matter, and (iii) Newco shall not be liable for any settlement effected without its prior written consent; provided, however, that Newco shall not have any obligation hereunder to any D&O Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such D&O Indemnified Party in the manner contemplated hereby is prohibited by applicable Law.
(c) Parent shall cause to be maintained, for For a period of not less than six (6) years from after the Effective Time, Newco shall cause the CompanySurviving Corporation to maintain Stratex’s current directorsexisting officers’ and officersdirectors’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers covering those Persons who are covered by Stratex’s D&O Insurance in effect as of the Company or any Subsidiary thereof, date of this Agreement so long as the aggregate annual premium therefor would is not be in excess of Four Million Dollars ($4,000,000) 200% of the last annual premium paid prior to the date of this Agreement, which is set forth in Section 9.18 of the Stratex Disclosure Letter (the “Maximum Current Premium”); provided provided, however, that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If if the existing D&O Insurance exceeds 200%, expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of cancelled during such D&O Insurancesix-year period, the maximum directors’ and officers’ liability insurance coverage that Surviving Corporation shall obtain as much D&O Insurance as can be obtained for the remainder of such period by paying for a premium not in excess (on an annualized basis) of 200% of the Current Premium (such 200% amount, the “Maximum Annual Premium, provided that aggregate premiums payable by Parent for the ”). In lieu of purchasing D&O Insurance pursuant to the immediately preceding sentence, Stratex may purchase a six-year “tail” prepaid policy prior to the Effective Time on terms and conditions no less advantageous to the D&O Indemnified Parties than the existing D&O Insurance maintained by Stratex; provided, that the amount paid by Stratex shall not exceed two (2) times the Maximum Annual Premium. Stratex shall cooperate with Hxxxxx in good faith to explore the possibility of satisfying the obligations of Newco under this Section 6.11(c9.18(c) by purchasing a “tail” period policy satisfying the requirements of this Section 9.18(c). If such “tail” prepaid policy has been obtained by Stratex prior to the Closing, the Surviving Corporation shall, and Newco shall cause the Surviving Corporation to, maintain such policy in full force and effect, for its full term, and continue to honor their respective obligations thereunder, and all other obligations under this Section 9.18(c) shall in no event exceed the Maximum Premiumterminate.
(d) In the event Parent, the Surviving Corporation If Newco or any of their respective its successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Newco shall assume all of the obligations set forth in this Section 6.119.18.
(e) The provisions obligations under this Section 9.18 shall not be terminated, amended or otherwise modified in such a manner as to adversely affect any D&O Indemnified Party without the prior written consent of such affected D&O Indemnified Party. Each of the D&O Indemnified Parties are intended to be third party beneficiaries of this Section 6.11 are 9.18, with full rights of enforcement as if a party thereto. The rights of the D&O Indemnified Parties under this Section 9.18 shall be in addition to the to, and not in substitution for, any other rights that an Indemnified Party such persons may have under the certificate or articles of incorporation, bylaws or other equivalent organizational documents, any and all indemnification agreements of or with the Company entered into by Newco or any of its Subsidiaries Subsidiaries, or under applicable law. Parent agrees to pay all costs and expenses Law (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party whether at law or in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representativesequity).
Appears in 2 contracts
Samples: Merger Agreement (Stratex Networks Inc), Merger Agreement (Harris Corp /De/)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify the Surviving Corporation shall indemnify, defend and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined person who is as of the date hereof or who becomes prior to the Effective Time (eachTime, an Indemnified Party and, collectively, officer or director of Saratoga or any of its Subsidiaries (the “"Indemnified Parties”)") against (i) all losses, against claims, damages, costs, expenses, liabilities or judgments or amounts of any costs nature whatsoever, governmental or expenses non-governmental (including but not limited to reasonable attorneys’ fees expenses of counsel and expenses), judgments, fines, losses, amounts investigation) that are paid in settlement claims, damages of or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), investigation based in whole or in part based on or arising in whole or in part out of matters the fact that such person is or was a director or officer of Saratoga or any Subsidiary of Saratoga, whether pertaining to any matter existing or occurring at or prior to the Effective Time, Time and whether asserted or claimed prior to, or at or after, the Effective Time ("Indemnified Liabilities") and (ii) 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 transactions contemplated hereby, in each case to the full extent that Saratoga would have been permitted under applicable law and its Articles of Incorporation, and the Surviving Corporation is permitted under California law, to indemnify such person (and the Surviving Corporation shall pay expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the full extent permitted by law with no bond or security to be required upon receipt of any undertaking required by section 317(f) of the CGCL). Without limiting the foregoing, in the event any such claim, action, suit, proceeding or investigation is brought against any Indemnified Parties (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time shall be reasonably satisfactory to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person Surviving Corporation; (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL).
(cii) Parent shall cause to be maintained, for a period of not less than six (6) years from after the Effective Time, the Company’s current directors’ Surviving Corporation shall pay all reasonable fees and officers’ expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; and (iii) after the Effective Time, the Surviving Corporation will use all reasonable efforts to assist in the vigorous defense of any such matter, provided that the Surviving Corporation shall not be liable for any settlement of any claim effected without its written consent, which consent, however, shall not be unreasonably withheld or delayed. Any Indemnified Party wishing to claim indemnification under this Section 5.7, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Surviving Corporation (but the failure so to notify the Surviving Corporation shall not relieve it from any liability which it may have under this Section 5.7 except to the extent such failure materially prejudices the Surviving Corporation), and shall deliver to the Surviving Corporation the undertaking, if any, required by section 317(f) of the CGCL. The Surviving Corporation shall be liable for the fees and expenses hereunder with respect to only one law firm, in addition to local counsel in each applicable jurisdiction, to represent the Indemnified Parties as a group with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict between the positions of any two or more Indemnified Parties that would preclude or render inadvisable joint or multiple representation of such parties.
(b) Upon the Effective Time, any executive officer or director of Saratoga or SNB who becomes an officer or director of SJNB (including any Subsidiaries thereof) shall be included in SJNB's director and officer insurance policy. Saratoga shall cooperate with SJNB to obtain extended coverage under Saratoga's director and officer insurance policy to cover claims made for a period of three years after the extent that it provides coverage for events occurring Effective Time regarding acts or omissions of Saratoga or SNB's directors or officers prior to the Effective Time (Time; provided, however, that SJNB shall not be obligated to make annual premium payments for such insurance to the “D&O Insurance”) for all present and former directors and officers extent such premiums exceed 150% of the Company or premiums paid by Saratoga and SNB in respect of 1998 for such insurance, as previously disclosed to SJNB ("Saratoga's Current Premium"), and if such premiums for such insurance would at any Subsidiary thereoftime exceed 150% of Saratoga's Current Premium, so long as the aggregate premium therefor would not then SJNB shall cause to be in excess maintained policies of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent mayinsurance which, in lieu of maintaining such existing D&O Insurance as provided aboveSJNB's good faith determination, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, provide the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder available at an annual premium equal to 150% of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Saratoga's Current Premium.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(ec) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 5.7 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party, his or her heirs and his or her representatives and 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.
(d) Notwithstanding the foregoing, any rights or benefits conferred by Saratoga or SNB to their respective directors or officers under indemnification agreements in effect as of the Indemnified Partiesdate hereof shall, their heirs to the extent such rights or benefits provided thereunder are in excess of or an enhancement of the indemnification rights provided for in this Section 5.7, be honored by SJNB and their representativesreplace or supplement the indemnification rights provided in this Section 5.7 with respect to indemnification for acts or omissions by such directors or officers occurring prior to the Closing Date.
Appears in 2 contracts
Samples: Merger Agreement (Saratoga Bancorp), Merger Agreement (SJNB Financial Corp)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will the Surviving Corporation shall indemnify and hold harmless harmless, to the fullest extent permitted by applicable law, each present and former director director, officer or employee of TCF and officer of the Companyits Subsidiaries (in each case, (when acting in such capacity) determined as of the Effective Time (each, an a “TCF Indemnified Party and, collectively, the “Indemnified PartiesParty”), ) against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole whether arising before or in part based on or after the Effective Time, arising in whole or in part out of, or pertaining to, the fact that such person is or was a director, officer or employee of matters TCF or any of its Subsidiaries or is or was serving at the request of TCF or any of its Subsidiaries as a director or officer of another person and pertaining to matters, acts or omissions existing or occurring at or prior to the Effective Time, whether asserted including matters, acts or claimed prior to, at or after omissions occurring in connection with the Effective Time, to approval of this Agreement and the fullest extent that transactions contemplated by this Agreement; and Chemical and the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent Surviving Corporation shall also advance expenses as incurred by such TCF Indemnified Party to the fullest extent permitted under by applicable law law; provided that the Person TCF Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person TCF Indemnified Party is not entitled to indemnification under indemnification. The Surviving Corporation shall reasonably cooperate with the DGCL)TCF Indemnified Party, and the TCF Indemnified Party shall reasonably cooperate with the Surviving Corporation in the defense of any such claim, action, suit, proceeding or investigation.
(cb) Parent shall cause to be maintained, for For a period of not less than six (6) years from after the Effective Time, the Company’s Surviving Corporation shall maintain in effect the current policies of directors’ and officers’ liability insurance policy maintained by TCF (provided that Chemical may substitute therefor policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions which are no less advantageous to the extent insured) with respect to claims against the present and former officers and directors of TCF or any of its Subsidiaries arising from facts or events which occurred at or before the Effective Time (including the transactions contemplated by this Agreement); provided that it provides the Surviving Corporation shall not be obligated to expend, on an annual basis, an amount in excess of 300% of the current annual premium paid as of the date hereof by TCF for such insurance (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then the Surviving Corporation shall cause to be maintained policies of insurance which, in the Surviving Corporation’s good faith determination, provide the maximum coverage for events occurring available at an annual premium equal to the Premium Cap. In lieu of the foregoing, Chemical may (and with the prior written consent of Chemical, TCF may use its reasonable best efforts to) obtain at or prior to the Effective Time one or more six-year “tail policies” providing equivalent coverage to that described in the preceding sentence if and to the extent that the same may be obtained for an amount that, in the aggregate, does not exceed the Premium Cap. If Chemical or TCF purchases such a tail policy, the Surviving Corporation shall maintain such tail policy in full force and effect and continue to honor its obligations thereunder.
(the “D&O Insurance”c) for all present and former directors and officers The obligations of the Company Surviving Corporation, Chemical and TCF under this Section 6.7 shall not be terminated or modified after the Effective Time in a manner so as to adversely affect any TCF Indemnified Party or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage other person entitled to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed 6.7 without the Maximum Premiumprior written consent of the affected TCF Indemnified Party or affected person.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 6.7 shall survive the Merger Effective Time and are intended to be for the benefit of, and shall be enforceable by, each TCF Indemnified Party and his or her heirs and representatives. If the Surviving Corporation or any of its successors or assigns will consolidate with or merge into any other entity and not be the continuing or surviving entity of such consolidation or merger, transfer all or substantially all of its assets or deposits to any other entity or engage in any similar transaction, then in each case to the extent the obligations set forth in this Section 6.7 are not otherwise transferred and assumed by such successors and assigns by operation of law or otherwise, the Surviving Corporation will cause proper provision to be made so that the successors and assigns of the Indemnified Parties, their heirs and their representativesSurviving Corporation will expressly assume the obligations set forth in this Section 6.7.
Appears in 2 contracts
Samples: Merger Agreement (Chemical Financial Corp), Merger Agreement (TCF Financial Corp)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws by-laws of the Surviving Corporation shall contain contain, in all material respects and to the extent permitted by applicable Law the same provisions with respect to indemnification no more restrictive in scope indemnification, advancement and no less favorable to the Indemnified Parties (as defined below) as director and officer exculpation set forth in the certificate of incorporation and bylaws by-laws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after from the Effective Time in any manner that would affect adversely affect the rights thereunder of persons who at any time prior to the Indemnified Parties Effective Time were entitled to indemnification, advancement or exculpation under the certificate of incorporation or bylaws and by-laws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) Law. From and after the Effective TimeTime through the sixth (6th) anniversary of the date on which the Effective Time occurs, Parent agrees that it will shall cause the Surviving Corporation to indemnify and hold harmless each present and former person who was, is now, or who becomes prior to the Effective Time, a director and or officer of the Company, Company or any of its Subsidiaries (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs or expenses (and expenses, including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities disbursements (collectively, “Costs”) ), incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or pertaining to (i) the fact that the Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or (ii) acts or omissions occurring at or prior to the Effective TimeTime (including acts or omissions in connection with this Agreement and the consummation of the transactions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under Delaware Law for officers and directors of Delaware corporations. Each Indemnified Party will be entitled to advancement of expenses incurred in the DGCL and its certificate defense of incorporation and bylaws in effect on any such claim, action, suit, proceeding or investigation from the date hereof to indemnify such Person Surviving Corporation within ten (and 10) Business Days of receipt by Parent shall also advance expenses as incurred to or the fullest extent permitted under applicable law provided Surviving Corporation from the Indemnified Party of a request therefor; provided, that, any Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL)indemnification.
(cb) Subject to the next sentence, the Surviving Corporation shall maintain, and Parent shall cause the Surviving Corporation to be maintainedmaintain, at no expense to the Indemnified Parties, in effect for a period of not less than six (6) years from the Effective Time, Time the Company’s current policies of the directors’ and officers’ liability insurance policy maintained by the Company with respect to the extent that it provides coverage for events matters existing or occurring at or prior to the Effective Time (including the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereoftransactions contemplated by this Agreement), so long as the aggregate annual premium therefor would not be in excess of Four Million Dollars 150% of the annual premium paid by the Company in its most recent fiscal year, which premium is set forth in Section 7.13(b) of the Company Disclosure Schedule ($4,000,000) (150% of such annual premium, the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the Company’s existing D&O Insurance insurance expires, is terminated or canceled by the insurer during such six-year period or if the aggregate premium would exceed exceeds the Maximum Premium, Parent the Surviving Corporation shall obtain, in lieu of such D&O Insuranceand Parent shall cause the Surviving Corporation to obtain, the maximum as much directors’ and officers’ liability insurance coverage that as can be obtained for the remainder of such period by paying for an annualized premium not in excess of the Maximum Premium, provided on terms and conditions as favorable as can be obtained in comparison to the Company’s existing directors’ and officers’ liability insurance. The provisions of this Section 7.13(b) shall be deemed to have been satisfied if Parent, with the cooperation of the Company, obtains prepaid policies prior to the Closing for purposes of this Section 7.13, which policies provide such Indemnified Parties with coverage no less advantageous to the insured for an aggregate period of six (6) years with respect to claims arising from facts or events that aggregate premiums payable by Parent for occurred on or before the D&O Insurance pursuant Effective Time (including those related to this Agreement and the transactions contemplated hereby).
(c) If Parent fails to comply with its obligations under this Section 6.11(c7.13, and, in order to enforce an Indemnified Party’s rights under this Section 7.13, an Indemnified Party commences a suit that results in a judgment against Parent that Parent breached its obligations under this Section 7.13, Parent shall pay to the Indemnified Party its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) shall incurred in no event exceed the Maximum Premiumconnection with such suit after delivery to Parent of reasonable documentation evidencing such costs and expenses.
(d) In the event that Parent, the Surviving Corporation or any of their respective Subsidiaries (or any of their respective successors or assigns (iassigns) consolidates with or merges into with any other Person and shall is not be the continuing or surviving corporation or entity of Person in such consolidation or merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and then in each such case, to the extent necessary, case proper provision shall be made so that the continuing or surviving Person (or its successors and assigns of Parent or the Surviving Corporationassigns, as the case may be, if applicable) shall assume the obligations set forth in this Section 6.117.13.
(e) The provisions of this Section 6.11 7.13 are intended to be in addition to the rights that an Indemnified Party may have under otherwise available to the certificate current officers and directors of incorporation, bylaws or agreements of or with the Company by law, charter, statute, by-law or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs agreement, and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be operate for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representativesrepresentatives in accordance with Section 10.8 hereof.
Appears in 2 contracts
Samples: Merger Agreement (Netopia Inc), Merger Agreement (Netopia Inc)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, to the fullest extent permitted under applicable Law and the Company’s Organizational Documents in effect as of the date of this Agreement, Parent agrees that it will indemnify shall cause (including by providing all necessary funding) the Surviving Corporation to (i) indemnify, defend and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), Parties against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with with, arising out of or otherwise related to any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)alleged Proceeding, in whole or in part based on or connection with, arising in whole or in part out of or otherwise related to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to based in whole or in part, or arising in whole or in part out of the fullest extent fact that he or -67- she is or was a director or officer of the Company would have been permitted under or any of its Subsidiaries, including in connection with (A) the DGCL transactions contemplated by this Agreement and its certificate (B) actions to enforce this provision or any other indemnification or advancement right of incorporation any Indemnified Party, and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also ii) advance reasonable documented out-of- pocket expenses as incurred to the fullest extent permitted under applicable law in connection therewith (upon receipt from such Indemnified Party of a request therefor, accompanied by invoices or other relevant documentation); provided the that any Person to whom expenses are so advanced provides an undertaking to repay such advances if it is ultimately determined by final adjudication by the Chosen Courts that such Person is not entitled to indemnification such advanced expenses; provided, further, that any determination required to be made with respect to whether an Indemnified Party’s conduct complies with the standards set forth under applicable Law and the DGCLCompany’s Organizational Documents in effect as of the date of this Agreement shall be made by independent legal counsel selected by the Surviving Corporation and acceptable to the Indemnified Party (such acceptance not to be unreasonably conditioned, withheld or delayed).
(cb) Parent shall cause Prior to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current Company shall and, if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay the premium for “tail” insurance policies for the extension of (i) the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies, and (ii) the Company’s existing fiduciary liability insurance policies (collectively, “D&O Insurance”), in each case for a claims reporting or discovery period of the Tail Period with respect to any claim related to matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the transactions or actions contemplated by this Agreement) from the Company’s D&O Insurance carrier as of the date of this Agreement or one or more insurance carriers with the same or better credit rating as such carrier with terms, conditions, retentions and limits of liability that are at least as favorable to the insureds as the Company’s existing policies; provided, however, that in no event shall the premium amount for such policies exceed the amount set forth in Section 7.11(a) of the Company Disclosure Schedule; provided, further, that the Company shall give Parent a reasonable opportunity to participate in the selection of such “tail” insurance policy and the Company shall give reasonable and good faith consideration to any comments made by Parent with respect thereto. If the Company for any reason fails to obtain or Parent for any reason fails to cause to be obtained 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 the Tail Period the D&O Insurance in place as of the date of this Agreement with the Company’s D&O Insurance carrier as of the date of this Agreement or with or one or more insurance carriers with the same or better credit rating as such carrier with terms, conditions, retentions and limits of liability that are at least as favorable to the extent insureds as provided in the Company’s existing policies as of the date of this Agreement, or the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, purchase comparable D&O Insurance for the Tail Period with terms, conditions, retentions and limits of liability that it provides are at least as favorable as provided in the Company’s existing policies as of the date of this Agreement and from an insurance carrier with the same or better credit rating as the Company’s D&O Insurance carrier as of the date of this Agreement, in each case providing coverage with respect to any matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the transactions or actions contemplated by this Agreement); and provided, further, that if the cost of such insurance coverage exceeds such amount, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, obtain a policy with the greatest coverage available for events a cost not exceeding such amount.
(c) During the Tail Period, without the prior written consent of the Indemnified Party, all rights to indemnification and exculpation from liabilities for acts or omissions occurring prior to the Effective Time (and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the “D&O Insurance”) for all present Organizational Documents of the Company and former directors its Subsidiaries or any indemnification agreement between such Indemnified Party and officers of the Company or any Subsidiary thereofof its Subsidiaries, so long in each case, as in effect on the aggregate premium therefor would date of this Agreement, shall not be amended, restated, amended and restated, repealed or otherwise modified in excess any manner that would adversely affect any right thereunder of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining any such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum PremiumIndemnified Party.
(d) In the event Parent, If Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity Person of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume all the obligations set forth in this Section 6.117.11(a).
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel7.11(a) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and from and after the Effective Time shall be enforceable by, each of the Indemnified Parties, who shall be third-party beneficiaries of this Section 7.11(a).
(f) The rights of the Indemnified Parties under this Section 7.11(a) are in addition to any rights such Indemnified Parties may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable Contracts or Laws and nothing in this Agreement is intended to, shall be construed or shall release, waiver 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 heirs respective directors, officers or other employees (it being understood and their representativesagreed that the indemnification provided for in this Section 7.10(a) is not prior to or in substitution of any such claims under such policies).
Appears in 2 contracts
Samples: Merger Agreement (Voya Financial, Inc.), Merger Agreement (Voya Financial, Inc.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate Each of incorporation Dime and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this AgreementXxxxxx agrees that, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From from and after the Effective Time, Parent agrees that it the Surviving Corporation will indemnify and hold harmless each present and former director and officer of the CompanyDime, (when acting in such capacity) Xxxxxx and their respective subsidiaries, determined as of the Effective Time (each, an Indemnified Party and, collectively, the “"Indemnified Parties”"), against any costs or expenses (including reasonable attorneys’ fees and expenses' fees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “"Costs”") incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of or pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company Dime, Xxxxxx or such subsidiary would have been permitted under applicable law of the DGCL jurisdiction of its incorporation and its the certificate of incorporation and bylaws or by-laws of Dime, Xxxxxx or such subsidiary in effect on the date hereof to indemnify such Person person (and Parent the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under applicable law law; provided that the Person person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person person is not entitled to indemnification).
(b) To the extent that paragraph (a) shall not serve to indemnify and hold harmless an Indemnified Party, for a period of six years after the Effective Time, each of Dime and Xxxxxx agrees that the Surviving Corporation shall, subject to the terms set forth herein, indemnify and hold harmless, to the fullest extent permitted under applicable law (and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under applicable law, provided that the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification), each Indemnified Party against any Costs incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the transactions contemplated by this Agreement. In the event any claim or claims are asserted or made within such six-year period, all rights to indemnification under the DGCL)in respect of any such claim or claims shall continue until final disposition of any and all such claims.
(c) Parent shall cause to be maintained, for For a period of not less than six (6) years from the Effective Time, the Company’s current Surviving Corporation shall provide that portion of directors’ ' and officers’ ' liability insurance policy that serves to reimburse the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former officers and directors of Xxxxxx or any of its subsidiaries (determined as of the Effective Time) with respect to claims against such directors and officers of arising from facts or events which occurred before the Company or any Subsidiary thereofEffective Time, so long as which insurance shall contain at least the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent maysame coverage and amounts, in lieu of maintaining such existing D&O Insurance as provided above, cause and contain terms and conditions no less favorable advantageous, as that coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy currently provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum PremiumXxxxxx.
(d) Any Indemnified Party wishing to claim indemnification under Section 6.13(a) or (b), upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify the Surviving Corporation thereof, but the failure to so notify shall not relieve the Surviving Corporation of any liability it may have to such Indemnified Party if such failure does not materially prejudice the Surviving Corporation. In the event Parentof any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person shall have the right to assume the defense thereof and the Surviving Corporation shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the continuing defense thereof, except that, if the Surviving Corporation elects not to assume such defense or surviving corporation or entity counsel for the Indemnified Parties advises that there are issues which raise conflicts of such consolidation or mergerinterest between the Surviving Corporation and the Indemnified Parties, or (ii) transfers or conveys all or substantially all of its properties and assets the Indemnified Parties may retain counsel satisfactory to any Person, thenthem, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to Corporation shall pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by such counsel for the Indemnified Parties promptly as statements therefor are received. If such indemnity is not available with respect to any Indemnified Party in successfully enforcing Party, then the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger Surviving Corporation and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs Party shall contribute to the amount payable in such proportion as is appropriate to reflect relative faults and their representativesbenefits.
Appears in 2 contracts
Samples: Merger Agreement (Hudson United Bancorp), Agreement and Plan of Merger (Hudson United Bancorp)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will shall, and shall cause the Surviving Corporation to, indemnify and hold harmless harmless, to the fullest extent permitted under applicable Law and the applicable certificate of incorporation or bylaws (or similar governing documents) of the Company and its Subsidiaries (and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under applicable Law and the applicable certificate of incorporation or bylaws (or similar governing documents) of the Company and its Subsidiaries, provided that the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by a court of competent jurisdiction that such Person is not entitled to such indemnification), each present and former director (or Person in a similar position) and officer of the Company, Company and its Subsidiaries (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), ) against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring related to such Indemnified Parties’ service as a director or officer of the Company or its Subsidiaries or services performed by such persons at the request of the Company or its Subsidiaries at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to including the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify transactions contemplated by this Agreement. The Surviving Corporation shall not require any security for such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL)undertaking.
(cb) Parent shall cause Prior to be maintained, for a period of not less than six (6) years from the Effective Time, the Company shall and if the Company is unable to, Parent shall cause the Surviving Corporation to obtain and maintain an extension of (i) the Side A coverage part (directors’ and officers’ liability) of the Company’s existing directors’ and officers’ insurance policies (correct and complete copies of which have been previously made available to Parent), and (ii) the Company’s existing fiduciary liability insurance policies (correct and complete copies of which have been previously made available to Parent), in each case for a claims reporting or discovery period of at least six years from and after the Effective Time (covering acts or omissions occurring prior to 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 policy 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 extent Company or any of its Subsidiaries by reason of him or her serving in such capacity that it provides coverage for events occurring existed or occurred at or prior to the Effective Time (including in connection with this Agreement or the transactions or actions contemplated hereby). 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”) for all present Insurance in place as of the date hereof with terms, conditions, retentions and former limits of liability that are at least as favorable to the Company’s directors and officers as provided in the Company’s existing policies as of the Company date hereof, or any Subsidiary thereofthe Surviving Corporation shall, so long and Parent shall cause the Surviving Corporation to, use reasonable best efforts 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 aggregate Company’s directors and officers as provided in the Company’s existing policies as of the date hereof; provided that in no event shall the Surviving Corporation be required to expend for such policies an annual premium therefor would not be amount in excess of Four Million Dollars ($4,000,000) (150% of the “Maximum Premium”)annual premiums currently paid by the Company for such insurance; provided further that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu annual premiums of such D&O Insuranceinsurance coverage exceed such amount, the maximum directors’ and officers’ liability insurance Surviving Corporation shall obtain a policy with the greatest coverage that can be obtained available for the remainder of a cost not exceeding such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premiumamount.
(dc) In the event Parent, If the Surviving Corporation or any of their its respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume all of the obligations set forth in this Section 6.116.12.
(ed) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 6.12 shall survive the Merger Closing, and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs Parties and their its successors and representatives.
(e) The rights of the Indemnified Parties under this Section 6.12 shall be in addition to any rights such Indemnified Parties may have under the certificate of incorporation or bylaws of the Company or any of its Subsidiaries, or under any applicable Contracts or Laws.
Appears in 1 contract
Samples: Merger Agreement (Sm&A)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation From and bylaws of after the Effective Time, the Surviving Corporation shall, and Parent shall contain provisions with respect to indemnification no more restrictive in scope cause the Surviving Corporation to: (i) indemnify and no less favorable hold harmless each individual who served as a director or officer of the Company or any Company Subsidiary prior to the Effective Time (collectively, the “Officer Indemnified Parties Parties”) to the extent provided for under the terms and conditions of the Company Certificate of Incorporation or the Company Bylaws (each as in effect as of the date hereof), in connection with any Claim (as defined below) and any judgments, fines (including excise taxes), penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such judgments, fines, penalties or amounts paid in settlement) resulting therefrom. The indemnification obligations of the Surviving Corporation pursuant to this Section 5.9(a) shall extend to acts or omissions occurring at or before the Effective Time and any Claim relating thereto (including with respect to any acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby and any Claim relating thereto) and all rights to indemnification conferred hereunder shall continue as set forth in the certificate of incorporation and bylaws to an individual who has ceased to be a director or officer of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after any Company Subsidiary prior to the Effective Time and shall inure to the benefit of such individual’s heirs, executors and personal and legal representatives. As used in this Section 5.9(a), the term “Claim” means any manner threatened, asserted, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the Company, any Governmental Entity or any other party, that would adversely affect any Officer Indemnified Party in good faith believes might lead to the rights thereunder institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other, including any arbitration or other alternative dispute resolution mechanism, arising out of or pertaining to matters that relate to such Officer Indemnified Party’s duties or service as a director, officer, trustee, employee, agent, or fiduciary of the Indemnified Parties under the certificate of incorporation or bylaws Company, any Company Subsidiaries, any employee benefit plan maintained by any of the Company in respect of actions or omissions occurring foregoing at or prior to the Effective Time (including, without limitation, and any other Person at the transactions contemplated by this Agreement), unless such modification is required by applicable lawrequest the Company or any Company Subsidiaries.
(b) From and after the Effective Time, the Surviving Corporation shall, and Parent agrees that it will indemnify shall cause the Surviving Corporation to, keep in full force and hold harmless each present effect, and former director comply Table of Contents with the terms and officer of the Companyconditions of, (when acting any agreement in such capacity) determined effect as of the Effective Time (each, an date of this Agreement between or among the Company or any Company Subsidiary and any Officer Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid listed in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), in whole or in part based on or arising in whole or in part out Section 2.27 of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under Disclosure Schedule providing for the DGCL and its certificate indemnification of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL)Officer Indemnified Party.
(c) Parent shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event Parent, the Surviving Corporation or any of their respective its successors or assigns shall (i) consolidates consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity Person of such consolidation or merger, merger or (ii) transfers or conveys transfer all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or and the Surviving Corporation, as the case may be, assume all of the obligations of the Surviving Corporation set forth in this Section 6.115.9.
(ed) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 5.9 shall survive the consummation of the Merger for a period of six (6) years and (i) are intended to be for the benefit of, and shall be enforceable by, each Officer Indemnified Party and 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. The obligations of Parent or the Surviving Corporation under this Section 5.9 shall not be terminated or modified in such a manner as to adversely affect the rights of any Officer Indemnified Party under this Section 5.9 without the consent of such affected Officer Indemnified Party.
(e) Parent shall cause to be maintained in effect for not less than six (6) years from the Effective Time the current policies of the Indemnified Partiesdirectors’ and officers’ liability insurance maintained by the Company and set forth in Section 5.9 of the Company Disclosure Schedule, their heirs covering acts or omissions occurring prior to the Closing Date with respect to those persons who are currently covered by such current policies; provided that (i) Parent or the Surviving Corporation may substitute therefor policies of a reputable insurance company the terms of which are not materially less favorable to such directors and their representativesofficers in the aggregate than the insurance coverage otherwise required under this Section 5.9(e); or (ii) purchase a “tail” policy under the Company’s existing directors’ and officers’ insurance policy (the “tail policy”), the terms of which are not materially less favorable to such directors and officers in the aggregate than the insurance coverage otherwise required under this Section 5.9(e). Neither Parent nor the Surviving Corporation shall be required to pay annual premiums (for the current policies or any substitute policies) in excess of 150% of the current annual premium paid by the Company with respect to such current policies (which amount is set forth in Section 2.18 of the Company Disclosure Schedule) (the “Maximum Premium”) and, in the event any future annual premiums for the current policies (or any substitute policies) exceed the Maximum Premium, Parent and the Surviving Corporation shall be entitled to reduce the amount of coverage of the current polices (or substitute policies) to the amount of coverage that can be obtained for a premium equal to the Maximum Premium.
Appears in 1 contract
Samples: Merger Agreement (PMC Sierra Inc)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation During the Tail Period, Parent shall, and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of fullest extent that the Company on would have been permitted under the Company’s Organizational Documents in effect as of the date of this Agreement, which provisions Parent shall not be amendedcause the Surviving Corporation to, repealed or otherwise modified for a period of six (6i) years after the Effective Time in any manner that would adversely affect the rights thereunder of indemnify, defend and hold harmless the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer of the Company, (when acting in such capacitytheir capacities as such) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any reasonable and documented costs or expenses (including reasonable and documented attorneys’ fees and expensesfees), judgments, fines, losses, claims, damages, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with with, arising out of or otherwise related to any claim, action, suit, proceeding or investigation, actual or threatenedthreatened Proceeding arising out of, whether civil, criminal, administrative or investigative (a “Claim”), in whole related to or in part based on or arising in whole or in part out of connection with matters existing or any action or omission occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also ii) advance reasonable, documented out-of-pocket expenses as incurred to the fullest extent permitted under applicable law in connection therewith (upon receipt from such Indemnified Party of a request therefor, accompanied by invoices or other relevant documentation); provided the that any Person to whom expenses are so advanced provides an undertaking to repay such advances if it is ultimately determined by final adjudication by the Chosen Courts that such Person is not entitled to such advanced expenses. During the Tail Period, Parent and the Surviving Corporation shall maintain in effect the exculpation, indemnification under and advancement of expenses provisions of the DGCL)Company’s and any of its Subsidiary’s Organizational Documents in effect as of the date hereof, and shall not amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any individuals who at the Effective Time were Indemnified Parties; provided, further, that all rights to indemnification in respect of any Proceeding pending or asserted or any claim made within such period shall continue until the disposition of such Proceeding or resolution of such claim.
(cb) Parent shall cause Prior to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current Company shall use commercially reasonable efforts and, if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay the premium for “tail” insurance policies for the extension of the directors’ and officers’ liability and fiduciary coverage of the Company’s existing directors’ and officers’ insurance policy policies (“D&O Insurance”), in each case for a claims reporting or discovery period of the Tail Period with respect to the extent that it provides coverage for events any claim related to matters existing or occurring at or prior to the Effective Time (including covering the “Merger and the transactions contemplated hereby) from the Company’s D&O Insurance”) for all present and former directors and officers Insurance carrier as of the Company date of this Agreement or any Subsidiary thereofone or more insurance carriers with the same or better credit rating as such carrier with terms, so long conditions, retentions and limits of liability that are at least as favorable to the insureds as the aggregate Company’s existing policies; provided, however, that in no event shall the premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining amount for such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit policies exceed 300 percent of the directors and officers of Parent or a separate policy provided current aggregate annual premium paid by the same insurerCompany in respect of such coverage; provided, further, that the Company shall give Parent a reasonable opportunity to participate in the selection of such “tail” insurance policy and the Company shall give reasonable and good faith consideration to any comments made by Parent with respect thereto. If the existing Company for any reason fails to obtain or Parent for any reason fails to cause to be obtained 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 the Tail Period the D&O Insurance expiresin place as of the date of this Agreement with the Company’s D&O Insurance carrier as of the date of this Agreement or with or one or more insurance carriers with the same or better credit rating as such carrier with terms, is terminated conditions, retentions and limits of liability that are at least as favorable to the insureds as provided in the Company’s existing policies as of the date of this Agreement, or canceled by the insurer or if the aggregate premium would exceed the Maximum PremiumSurviving Corporation shall, and Parent shall obtaincause the Surviving Corporation to, purchase comparable D&O Insurance for the Tail Period with terms, conditions, retentions and limits of liability that are at least as favorable as provided in the Company’s existing policies as of the date of this Agreement and from an insurance carrier with the same or better credit rating as the Company’s D&O Insurance carrier as of the date of this Agreement, in lieu each case providing coverage with respect to any matters existing or occurring at or prior to the Effective Time (including covering the Merger and the transactions contemplated hereby); provided, however, that in no event shall the annual cost of such D&O InsuranceInsurance exceed during the Tail Period 300 percent of the current aggregate annual premium paid by the Company for such purpose; and provided further, that if the cost of such insurance coverage exceeds such amount, the maximum directors’ Surviving Corporation shall, and officers’ liability insurance Parent shall cause the Surviving Corporation to, obtain a policy with the greatest coverage that can be obtained available for the remainder of a cost not exceeding such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premiumamount.
(dc) In the event Parent, If Parent or the Surviving Corporation or any of their respective legal successors or permitted assigns (i) consolidates shall consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity Person of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the legal successors and permitted assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume all the obligations set forth in this Section 6.117.11.
(ed) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 7.11 are intended to be for the benefit of, and from and after the Effective Time shall be enforceable by, each of the Indemnified Parties, their heirs and their representativeswho shall be third-party beneficiaries of this Section 7.11.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this AgreementParent agrees that, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From from and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer of the Company, Company (when acting in such capacity) ), determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL Delaware law and its certificate of incorporation and bylaws or by-laws or pursuant to other agreements in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law law, provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification); and provided further, that any determination required to be made with respect to whether an officer’s or director’s conduct complies with the standards set forth under Delaware law and the Company’s certificate of incorporation and by-laws shall be made by independent counsel selected by the Surviving Entity.
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 6.13, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof. In the DGCLevent of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) Parent or the Surviving Entity shall have the right to assume the defense thereof and Parent 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, (ii) the Indemnified Parties will cooperate in the defense of any such matter, and (iii) Parent shall not be liable for any settlement effected without its prior written consent; and provided further, that Parent shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law.
(c) Parent The Surviving Entity shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, maintain the Company’s current directorsexisting officers’ and officersdirectors’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers a period of six years after the Company or any Subsidiary thereof, Effective Time so long as the aggregate annual premium therefor would (on an annualized basis) is not be in excess of Four Million Dollars ($4,000,000) 2.0 times the last annual premium paid prior to the date hereof (the “Maximum Current Premium”); provided provided, however, that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If if the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of cancelled during such D&O Insurancesix-year period, the maximum directors’ and officers’ liability insurance coverage that Surviving Entity will use its reasonable best efforts to obtain as much D&O Insurance as can be obtained for the remainder of such period by paying for a premium not in excess (on an annualized basis) of 2.0 times the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Current Premium.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 6.13 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent ING agrees that it will cause the Company to indemnify and hold harmless each present and former director director, officer and officer employee of the Company, Company (when acting in such capacity) ), determined as of immediately prior to the Effective Time (each, an Indemnified Party and, collectively, the “"Indemnified Parties”"), against any costs or expenses (including reasonable attorneys’ fees and expenses' fees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “"Costs”") incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted or required under the DGCL Connecticut law and its certificate of incorporation and bylaws or by-laws or pursuant to other agreements in effect on the date hereof to indemnify such Person (and Parent ING shall also cause the Company to advance expenses as incurred to the fullest extent permitted under applicable law provided law; provided, however, 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); and provided further, however, that any determination required to be made with respect to whether an officer's or director's conduct complies with the standards set forth under Connecticut law and the Company's certificate of incorporation and by-laws shall be made by independent counsel selected by the Surviving Corporation.
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 6.12, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify the DGCLSurviving Corporation and ING thereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) ING or the Surviving Corporation shall have the right to assume the defense thereof and ING or the Surviving Corporation shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if ING or the Surviving Corporation elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between ING or the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and ING or the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that the Surviving Corporation or ING shall be obligated pursuant to this paragraph (b) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction, (ii) the Indemnified Parties will cooperate in the defense of any such matter and (iii) ING or the Surviving Corporation shall not be liable for any settlement effected without its prior written consent; and provided further that neither ING nor the Surviving Corporation shall have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law.
(c) Parent ING shall cause the Surviving Corporation to be maintained, either (i) maintain the Company's existing officers' and directors' liability insurance for a period of not less than six (6) years from after the Effective Time, Time or (ii) maintain a run-off or tail policy or endorsement with respect to covering claims asserted within six years after the Company’s current directors’ and officers’ liability insurance policy to the extent Effective Time arising from facts or events that it provides coverage for events occurring prior to occurred at or before the Effective Time (the “either, "D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof"), in each case so long as the aggregate annual premium therefor would is not be in excess of Four Million Dollars ($4,000,000) 175% of the last annual premium paid prior to the date hereof (the “Maximum "Current Premium”"); provided provided, however, that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If if the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of cancelled during such D&O Insurancesix-year period, the maximum directors’ and officers’ liability insurance coverage that Surviving Corporation will use its reasonable efforts to obtain as much D&O Insurance as can be obtained for the remainder of such period by paying for a premium not in excess (on an annualized basis) of 175% of the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Current Premium.
(d) In the event Parent, If the Surviving Corporation or any of their respective its successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume all of the obligations set forth in this Section 6.11Section.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
(f) Notwithstanding any provision of this Section 6.12 to the contrary, to the extent a Cost is also a Spinco Group Liability (as defined in the Distribution Agreement) such matter shall be addressed as a Spinco Group Liability pursuant to the Distribution Agreement rather than this Section 6.12.
Appears in 1 contract
Samples: Merger Agreement (Aetna Inc)
Indemnification; Directors’ and Officers’ Insurance. (a) The Parent and Merger Sub agree that all rights to exculpation, indemnification and advancement of expenses under the Company’s certificate of incorporation incorporation, bylaws or indemnification Contracts or undertakings existing in favor of the Indemnified Parties on the date hereof (“Existing Indemnification Obligations”) shall survive the Merger and bylaws of shall be observed by and enforceable against the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in fullest extent permitted by the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified DGCL for a period of six (6) years after from the Effective Time in any manner Time; provided, however, that would adversely affect the all such rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions any action, claim, suit, proceeding or omissions occurring investigation that is pending, threatened or asserted at any time within such six-year period shall continue in full force and effect until the final disposition or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable lawresolution thereof.
(b) From and after the Effective Time, Parent agrees that it will and the Surviving Corporation shall jointly and severally indemnify and hold harmless harmless, to the fullest extent permitted under applicable Law, each present and former director and officer of the Company, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, settlements, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of or pertaining to such Indemnified Party’s service as a director or officer of the Company or services performed by such Person at the request of the Company or any Subsidiary of the Company, including (i) any and all matters pending, existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, and (ii) any claim arising from the transactions contemplated herein; provided, however, that, notwithstanding anything to the fullest extent that contrary contained in this Agreement, the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (Surviving Corporation and Parent shall only be required to indemnify and hold harmless, and advance expenses to, an Indemnified Party if and to the same extent such Indemnified Party is entitled to be indemnified and held harmless by the Company or has the right to advancement of expenses, as the case may be, from the Company pursuant to Existing Indemnification Obligations. Without limiting the foregoing, Parent and the Surviving Corporation shall also advance costs and expenses (including attorneys’ fees) as incurred by any Indemnified Party within fifteen (15) days after receipt by Parent of a written request for such advance to the fullest extent permitted under applicable law Law; provided that the Person to whom expenses are advanced provides an undertaking in customary form, consistent with the practices of the Company prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under (it being understood and agreed that neither the DGCLParent nor the Surviving Corporation shall require the posting of any bond or any other security for such undertaking).
(c) Parent shall cause Prior to be maintained, for a period of not less than six (6) years from the Effective Time, the Company shall and, if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay the premium for “tail” insurance policies for the extension of (i) the directors’ and officers’ liability coverage of the Company’s current existing directors’ and officers’ 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 insurance carrier as of the date hereof with respect to directors’ and officers’ liability insurance policy and fiduciary liability insurance (collectively, “D&O Insurance”) with terms, conditions, retentions and limits of liability that are at least as favorable to the extent insureds as the Company’s existing policies with respect to 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 it provides coverage for events occurring existed or occurred at or prior to the Effective Time (including in connection with this Agreement or the “D&O Insurance”) for all present and former directors and officers of the Company transactions or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”actions contemplated hereby); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit cost of the directors and officers annual premium amount for such “tail” insurance policies does not exceed an amount equal to 150% of Parent or a separate policy provided the annual premiums currently paid by the same insurerCompany for such insurance. If the existing D&O Insurance expiresCompany or the Surviving Corporation, is terminated or canceled by as applicable, for any reason fail to obtain such insurance policies as of the insurer or if Effective Time, the aggregate premium would exceed the Maximum PremiumSurviving Corporation shall, and Parent shall obtaincause the Surviving Corporation to, continue to maintain in lieu effect for a period of such D&O Insurance, at least six years from and after the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for 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 insureds 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, use reasonable best efforts 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 insureds 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 Section 6.11(c) sentence an annual premium amount in excess of 150% of the annual premiums currently paid by the Company for such insurance; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall in no event exceed obtain a policy with the Maximum Premiumgreatest coverage available for a cost not exceeding such amount.
(d) In Notwithstanding anything herein to the event Parentcontrary, this Section 6.11 shall survive the consummation of the Merger indefinitely and shall be binding, jointly and severally, on all successors and assigns of Parent and the Surviving Corporation. If the Surviving Corporation or any of their respective its successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume all of the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified PartiesParties and their respective successors, their heirs and their representatives, who are third party beneficiaries of this Section 6.11.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, each of Parent and the Surviving Corporation agrees that it will (including by Parent providing sufficient funds to the Surviving Corporation or the applicable Subsidiary) indemnify and hold harmless each present and former director and officer of the Company or any of its Subsidiaries and each other Person who, at the request or for the benefit of the Company or any of its Subsidiaries, is or was previously serving as a director or officer, MLP employee or fiduciary of any other Person or any benefit plan of the Company or any benefit plan of any of the Company’s Subsidiaries (in each case, (when acting in such capacity) ), determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), from and against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, claims, damages, penalties, amounts paid in settlement claims(including all interest, damages assessments and other charges) or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company or the applicable Subsidiary of the Company would have been permitted under the DGCL Delaware law and under its certificate of incorporation and bylaws or by-laws or other governing documents in effect on the date hereof of this Agreement to indemnify such Person (and Parent or the Surviving Corporation shall also advance fees, costs and expenses (including attorneys’ fees and disbursements) as incurred to the fullest extent permitted under applicable law Law, provided the Person 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 Person is not entitled to indemnification hereunder or thereunder).
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 6.13, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof, but the DGCL)failure to so notify shall not relieve Parent or the Surviving Corporation of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the indemnifying party.
(c) For six years after the Effective Time, Parent shall cause to be maintainedmaintained in effect provisions in the Surviving Corporation’s certificate of incorporation and bylaws (or in such documents of any successor to the business of the Surviving Corporation (including, for a period clarity the Surviving Company, if applicable)) regarding elimination of liability of directors, indemnification of directors, officers, employees, fiduciaries and agents and advancement of fees, costs and expenses that are no less advantageous to the intended beneficiaries than the corresponding provisions in existence on the date of this Agreement. From and after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to honor and comply with their respective obligations under any indemnification agreement with any Indemnified Party in effect as of (and disclosed to Parent prior to) the date hereof, and not less than six amend, repeal or otherwise modify any such agreement in any manner that would adversely affect any right of any Indemnified Party thereunder.
(6d) years from Prior to the Effective Time, the Company shall, and if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay for “tail” insurance policies (providing only for the Side A coverage for Indemnified Parties where the existing policies also include Side B coverage for the Company) with a claims period of at least six years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time 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 policy and fiduciary liability insurance (collectively, “D&O Insurance”) with benefits and levels of coverage no less favorable in any material respect to the extent that it provides coverage for events Indemnified Parties than 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 “D&O Insurance”transactions or actions contemplated hereby); provided, however, that in no event shall the Company expend for such policies a premium amount in excess of the amount set forth in Section 6.13(d) for all present and former directors and officers 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 of this Agreement with benefits and levels of coverage no less favorable in any material respect to the Indemnified Parties than that provided in the Company’s existing policies as of the date of this Agreement, or any Subsidiary thereofthe Surviving Corporation shall, so long and Parent shall cause the Surviving Corporation to, use reasonable best efforts to purchase comparable D&O Insurance for such six-year period with benefits and levels of coverage at least as favorable to the aggregate Indemnified Parties as provided in the Company’s existing policies as of the date of this Agreement), provided, however, that in no event shall Parent or the Surviving Corporation be required to expend for such policies an annual premium therefor would not be amount in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit 300% of the directors and officers of Parent or a separate policy provided annual premiums currently paid by the same insurer. If the existing D&O Insurance expiresCompany for such insurance; and, is terminated or canceled by the insurer or provided further that if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu annual premia of such D&O Insuranceinsurance coverage exceed such amount, the maximum directors’ and officers’ liability insurance Surviving Corporation shall obtain a policy with the greatest coverage that can be obtained available for the remainder of a cost not exceeding such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premiumamount.
(de) In the event Parent, If Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving CorporationCorporation (including, as for clarity, the case may beSurviving Company, if applicable) shall assume all of the obligations set forth in this Section 6.116.13.
(ef) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 6.13 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties.
(g) The rights of the Indemnified Parties under this Section 6.13 shall be in addition to any rights such Indemnified Parties may have under the certificate of incorporation or by-laws of the Company or any of its Subsidiaries, their heirs and their representativesor under any applicable Contracts or Laws.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation From and bylaws of after the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope Closing and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after years, Parent shall cause the Effective Time in any manner that would adversely affect Amalgamated Company to and the rights thereunder of Amalgamated Company shall indemnify, defend and hold harmless, to the Indemnified Parties fullest extent permitted under applicable Law, the certificate of incorporation or bylaws present and former directors and officers of the Company in respect and each of actions or omissions occurring at or prior to its Subsidiaries (the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “"Indemnified Parties”), ") from and against any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) all Losses incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (related to the fact that such person was a “Claim”)director or officer of the Company or any of its Subsidiaries, in whole or in part based on or arising in whole or in part out of pertaining to matters existing or occurring at or prior to the Effective TimeTime (including the Amalgamation and the other transactions contemplated by this Agreement and the Amalgamation Agreement), or taken by them at the request of the Company or any the Company Subsidiary, whether asserted or claimed prior to, at or after the Effective Time, . Each Indemnified Party will be entitled to advancement of reasonable expenses incurred in the fullest extent defense of any Action from the Amalgamated Company within ten Business Days of receipt by the Amalgamated Company from the Indemnified Party of a request therefor; provided that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the any Person to whom expenses are advanced provides an undertaking undertaking, if and only to the extent required by applicable Law, to repay such advances if it is ultimately determined that such Person person is not entitled to indemnification. The Amalgamated Company shall not settle, compromise or consent to the entry of any judgment in any proceeding or threatened Action (and in which indemnification under could be sought by such Indemnified Party), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Action or such Indemnified Party otherwise consents.
(b) Parent agrees that all rights to exculpation and indemnification for acts or omissions in favor of the DGCL)Indemnified Parties occurring prior to or at the Effective Time as provided in the Company's memorandum of association or bye-laws or in any agreement listed in the Company Disclosure Schedule shall be assumed by the Amalgamated Company from and after the Closing and shall continue in full force and effect in accordance with their terms from the Closing until the sixth anniversary of the Closing Date.
(c) The Company may obtain as of the Closing "tail" insurance policies with a claims period of at least six years from the Closing with respect to the directors' and officers' liability insurance in amount and scope at least as favorable as the coverage applicable to the Company's director's and officers for the period from November 2, 2005 through the Closing Date (the "Tail Policy"). The premium of such Tail Policy shall be no more than the amount set forth on Section 6.06 of the Company Disclosure Schedule. If the Company does not obtain the Tail Policy prior to the Closing, for a period of six years from the Closing, Parent shall cause to be maintained, for a period maintained in effect policies of not less than six (6) years from at least the Effective Time, same coverage as the Company’s current policies of directors’ ' and officers’ ' liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries as of the date hereof for the benefit of those persons who are covered by such policies on the Closing Date with respect to matters occurring at or under applicable law. prior to the Closing, to the extent that such liability insurance can be maintained at a cost to Parent agrees not greater than 200 percent of the last annual premium for the current directors' and officers' liability insurance as set forth in the Company Disclosure Schedule; provided that, if such insurance cannot be so maintained or obtained at such cost, Parent shall cause the Company to pay all costs maintain or obtain as much of such insurance as can be so maintained or obtained (not to exceed six years from the Closing Date) at a cost equal to 200 percent of the last annual premium for such insurance.
(d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Closing Date) is made against any party covered by directors' and expenses (including reasonable fees and expenses officers' liability insurance, on or prior to the sixth anniversary of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The Closing Date, the provisions of this Section 6.11 6.06 shall survive continue in effect until the Merger and are intended to be for the benefit offinal disposition of such claim, and shall be enforceable byaction, each of the Indemnified Partiessuit, their heirs and their representativesproceeding or investigation.
Appears in 1 contract
Samples: Transaction Agreement and Plan of Amalgamation (New Skies Satellites Holdings Ltd.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will each of Purchaser and the Surviving Corporation shall indemnify and hold harmless each present and former director director, officer or employee of Company and officer of the Companyits Subsidiaries (in each case, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Company Indemnified Parties”), ) against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole whether arising before or in part based on or after the Effective Time, arising in whole or in part out of the fact that such person is or was a director, officer or employee of Company or any of its Subsidiaries and pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after including the Effective Time, transactions contemplated by this Agreement to the fullest same extent that as such persons are indemnified as of the date of this Agreement by Company pursuant to the Company would have been permitted under Articles, Company Bylaws, the DGCL governing or organizational documents of any Subsidiary of Company and its certificate any indemnification agreements in existence 000-0000-0000/10/AMERICAS as of incorporation and bylaws in effect on the date hereof to indemnify such Person (hereof; and Parent Purchaser and the Surviving Corporation shall also advance expenses as incurred by such Company Indemnified Party to the fullest same extent permitted under applicable law provided as such persons are entitled to advancement of expenses as of the Person date of this Agreement by Company pursuant to the Company Articles, Company’s Bylaws, the governing or organizational documents of any Subsidiary of Company and any indemnification agreements in existence as of the date hereof; provided, that, if required, the Company Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person Company Indemnified Party is not entitled to indemnification under the DGCL)indemnification.
(cb) Parent shall cause Prior to be maintained, for a period of not less than six (6) years from the Effective Time, Company, in consultation with and subject to the approval of Purchaser, shall obtain a six-year “tail” policy under the Company’s current existing directors’ and officers’ liability insurance policy providing coverage not less than the existing coverage under, and have other terms not materially less favorable to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insuranceinsured persons than, the maximum directors’ and officers’ liability insurance coverage that can be obtained presently maintained by the Company, so long as the aggregate cost, on an annual basis, is less than 200% of the annual premium currently paid by the Company for such insurance (the remainder of “Premium Cap”), and if such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event such insurance would at any time exceed the Maximum PremiumPremium Cap, then Company shall, in consultation with and subject to the approval of Purchaser, obtain policies of insurance which provide the maximum coverage available at an annual premium equal to the Premium Cap.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(ec) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 6.7 shall survive the Merger Effective Time and are intended to be for the benefit of, and shall be enforceable by, each Company Indemnified Party and his or her heirs and representatives. If the Surviving Corporation or any of its successors or assigns will consolidate with or merge into any other entity and not be the continuing or surviving entity of such consolidation or merger, transfer all or substantially all of its assets or deposits to any other entity or engage in any similar transaction, then in each case, the Surviving Corporation will cause proper provision to be made so that the successors and assigns of the Indemnified Parties, their heirs and their representativesSurviving Corporation will expressly assume the obligations set forth in this Section 6.7.
Appears in 1 contract
Samples: Merger Agreement (First Commonwealth Financial Corp /Pa/)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate From the Effective Time through the sixth (6th) anniversary of incorporation and bylaws of the date on which the Effective Time occurs, Parent shall cause the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope (and no less favorable any successor entity to the Indemnified Parties (as defined belowSurviving Corporation) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former person who is now, who has been prior to the date hereof, or who becomes prior to the Effective Time, a director and or officer of the Company, Company or any of its Subsidiaries (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs or expenses (and expenses, including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities disbursements (collectively, “Costs”) ), arising out of or incurred in connection with any claim, action, suit, proceeding proceeding, demand or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior pertaining to the Effective Timefact that the Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under Delaware Law for officers and directors of Delaware corporations. Each Indemnified Party will be entitled to advancement of expenses incurred in the DGCL and its certificate defense of incorporation and bylaws in effect on any such claim, action, suit, proceeding or investigation from the date hereof to indemnify such Person Surviving Corporation (and or successor entity) within ten (10) Business Days of receipt by Parent shall also advance expenses as incurred to or the fullest extent permitted under applicable law provided Surviving Corporation from the Person Indemnified Party of a request therefor; provided, however, that any Third Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person Third Party is not entitled to indemnification under the DGCL)indemnification.
(cb) Subject to the next sentence, the Surviving Corporation (or successor entity) shall purchase, and Parent shall cause the Surviving Corporation (or successor entity) to be maintainedpurchase, for a period of not less than six (6) years at no expense to the Indemnified Parties, from the Effective Time, a six (6) year tail under the Company’s current policies of the directors’ and officers’ liability insurance policy maintained by the Company with respect to the extent that it provides coverage for events matters existing or occurring at or prior to the Effective Time (including the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereoftransactions contemplated by this Agreement), so long as the aggregate premium therefor would not be in excess of Four Million Dollars the percentage, as set forth in Section 7.12(b) of the Company Disclosure Schedule, of the annual premium paid by the Company in its most recent fiscal year, which premium is set forth in Section 7.12(b) of the Company Disclosure Schedule ($4,000,000) (such percentage of the annual premium, the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed for such tail coverage exceeds the Maximum Premium, Parent the Surviving Corporation shall obtain, in lieu of such D&O Insuranceand Parent shall cause the Surviving Corporation to obtain, the maximum directors’ and officers’ liability insurance longest tail coverage that as can be obtained for the remainder a premium not in excess of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(dc) In the event ParentIf Parent fails to comply with its obligations under this Section 7.12, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and and, in order to enforce an Indemnified Party’s rights under this Section 7.12, an Indemnified Party commences a suit that results in a judgment against Parent that Parent breached its obligations under this Section 7.12, Parent 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, pay to the extent necessary, proper provision shall be made so that the successors Indemnified Party its reasonable costs and assigns expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit after delivery to Parent of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11reasonable documentation evidencing such costs and expenses.
(ed) The provisions of this Section 6.11 7.12 are intended to be in addition to the rights that an Indemnified Party may have under otherwise available to the certificate current officers and directors of incorporation, bylaws or agreements of or with the Company by law, charter, statute, by-law or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs agreement, and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be operate for the benefit of, and shall be are enforceable by, each of the Indemnified Parties, their heirs and their representativesrepresentatives in accordance with Section 10.8.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, each of Parent and the Surviving Corporation agrees that it will (including by Parent providing sufficient funds to the Surviving Corporation or the applicable Subsidiary) indemnify and hold harmless each present and former director and officer of the Company or any of its Subsidiaries and each other Person who, at the request or for the benefit of the Company or any of its Subsidiaries, is or was previously serving as a director or officer, MLP employee or fiduciary of any other Person or any benefit plan of the Company or any benefit plan of any of the Company’s Subsidiaries (in each case, (when acting in such capacity) ), determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), from and against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, claims, damages, penalties, amounts paid in settlement claims(including all interest, damages assessments and other charges) or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company or the applicable Subsidiary of the Company would have been permitted under the DGCL Delaware law and under its certificate of incorporation and bylaws or by-laws or other governing documents in effect on the date hereof of this Agreement to indemnify such Person (and Parent or the Surviving Corporation shall also advance fees, costs and expenses (including attorneys’ fees and disbursements) as incurred to the fullest extent permitted under applicable law Law, provided the Person 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 Person is not entitled to indemnification hereunder or thereunder).
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 6.13, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof, but the DGCL)failure to so notify shall not relieve Parent or the Surviving Corporation of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the indemnifying party.
(c) For six years after the Effective Time, Parent shall cause to be maintainedmaintained in effect provisions in the Surviving Corporation’s certificate of incorporation and bylaws (or in such documents of any successor to the business of the Surviving Corporation (including, for a period clarity the Surviving Company, if applicable)) regarding elimination of liability of directors, indemnification of directors, officers, employees, fiduciaries and agents and advancement of fees, costs and expenses that are no less advantageous to the intended beneficiaries than the corresponding provisions in existence on the date of this Agreement. From and after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to honor and comply with their respective obligations under any indemnification agreement with any Indemnified Party in effect as of (and disclosed to Parent prior to) the date hereof, and not less than six amend, repeal or otherwise modify any such agreement in any manner that would adversely affect any right of any Indemnified Party thereunder.
(6d) years from Prior to the Effective Time, the Company shall, and if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay for “tail” insurance policies (providing only for the Side A coverage for Indemnified Parties where the existing policies also include Side B coverage for the Company) with a claims period of at least six years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time 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 policy and fiduciary liability insurance (collectively, “D&O Insurance”) with benefits and levels of coverage no less favorable in any material respect to the extent that it provides coverage for events Indemnified Parties than 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 “D&O Insurance”transactions or actions contemplated hereby); provided, however, that in no event shall the Company expend for such policies a premium amount in excess of the amount set forth in Section 6.13(d) for all present and former directors and officers 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 of this Agreement with benefits and levels of coverage no less favorable in any material respect to the Indemnified Parties than that provided in the Company’s existing policies as of the date of this Agreement, or any Subsidiary thereofthe Surviving Corporation shall, so long and Parent shall cause the Surviving Corporation to, use reasonable best efforts to purchase comparable D&O Insurance for such six-year period with benefits and levels of coverage at least as favorable to the aggregate Indemnified Parties as provided in the Company’s existing policies as of the date of this Agreement), provided, however, that in no event shall Parent or the Surviving Corporation be required to expend for such policies an annual premium therefor would not be amount in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit 300% of the directors and officers of Parent or a separate policy provided annual premiums currently paid by the same insurer. If the existing D&O Insurance expiresCompany for such insurance; and, is terminated or canceled by the insurer or provided further that if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu annual premia of such D&O Insuranceinsurance coverage exceed such amount, the maximum directors’ and officers’ liability insurance Surviving Corporation shall obtain a policy with the greatest coverage that can be obtained available for the remainder of a cost not exceeding such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premiumamount.
(de) In the event Parent, If Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving CorporationCorporation (including, as for clarity, the case may beSurviving Company, if applicable) shall assume all of the obligations set forth in this Section 6.116.13.
(ef) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 6.13 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties.
(g) The rights of the Indemnified Parties under this Section 6.13 shall be in addition to any rights such Indemnified Parties may have under the certificate of incorporation or by-laws of the Company or any of its Subsidiaries, their heirs and their representativesor under any applicable Contracts or Laws.
Appears in 1 contract
Samples: Merger Agreement (Tesoro Corp /New/)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of Following the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable Effective Time, OCSL shall, to the fullest extent permitted under applicable Law, defend and hold harmless and advance expenses to the present and former directors and officers of OCSI or any of its Consolidated Subsidiaries (in each case, when acting in such capacity) (each, an “Indemnified Parties Party” and collectively, the “Indemnified Parties”) against all costs or expenses (as defined belowincluding, but not limited to, reasonable attorneys’ fees actually incurred, reasonable experts’ fees, reasonable travel expenses, court costs, transcript fees and telecommunications, postage and courier charges), judgments, fines, losses, claims, damages, penalties, amounts paid in settlement or other liabilities (collectively, “Indemnified Liabilities”) as set forth incurred in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in connection with any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect Proceeding arising out of actions or omissions occurring at or prior to the Effective Time (including, without limitation, including the transactions contemplated by this AgreementTransactions), unless . In the event of any such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer of the CompanyIndemnified Liabilities, (when acting in i) OCSL shall advance to such capacity) determined as Indemnified Party, upon request, reimbursement of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or documented expenses (including reasonable attorneys’ fees reasonably and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as actually incurred to the fullest extent permitted under applicable law Law provided that the Person to whom expenses are advanced advanced, or someone on his or her behalf, provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification and complies with other applicable provisions imposed under the DGCL)Investment Company Act and interpretations thereof by the SEC or its staff and (ii) OCSL and the applicable Indemnified Parties shall cooperate in the defense of such matter.
(cb) Parent Unless OCSL and OCSI shall cause otherwise agree, prior to be maintained, for a period of not less than six (6) years from the Effective Time, OCSI shall, and, if OCSI is unable to, OCSL shall, cause the Company’s current Surviving Company or its successor, effective as of the Effective Time, to obtain and fully pay the premium for a “tail” insurance policy for the extension of the directors’ and officers’ liability coverage of OCSI’s existing directors’ and officers’ insurance policy policies for a claims reporting or discovery period of six years from and after the Effective Time (the “Tail Period”) with coverage and amounts not less than, and terms and conditions that are not materially less advantageous to the extent that it provides coverage for events insureds as, OCSI’s existing policies with respect to matters existing or occurring at or prior to the Effective Time (the “Current D&O Insurance”) ). If OCSI and the Surviving Company or its successor for all present and former directors and officers any reason fail to obtain such “tail” insurance policy as of the Effective Time, the Surviving Company or any Subsidiary thereofits successor shall, so long as and OCSL shall cause the aggregate premium therefor would not be Surviving Company or its successor to, continue to maintain in excess of Four Million Dollars ($4,000,000) (effect for the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing Tail Period the Current D&O Insurance in place as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors date of this Agreement with coverage and officers of Parent or a separate policy amounts not less than, and terms and conditions that are not materially less advantageous to the insureds as, provided by in the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such Current D&O Insurance, or the maximum directors’ Surviving Company or its successor shall, and officers’ liability OCSL shall cause the Surviving Company or its successor to, purchase comparable insurance coverage that can be obtained for the remainder of such period by paying the Maximum PremiumTail Period; provided, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event shall the annual cost of such insurance exceed during the Maximum PremiumTail Period 300% of the current aggregate annual premium paid by OCSI for such purpose; provided, further, that if the cost of such insurance coverage exceeds such amount, the Surviving Company or its successor shall obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) Any Indemnified Party wishing to claim indemnification under Section 7.5(a), upon learning of any Proceeding described above, shall promptly notify OCSL in writing; provided, that the failure to so notify shall not affect the obligations of OCSL under Section 7.5(a) unless OCSL is materially prejudiced as a consequence.
(d) In the event Parent, the Surviving Corporation If OCSL or any of their respective its successors or assigns (i) consolidates with or merges into any other Person 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 assets to any Personother entity, then, then and in each such case, to the extent necessary, OCSL shall cause proper provision shall to be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, OCSL shall assume the obligations set forth in this Section 6.117.5.
(e) The provisions of this Section 6.11 7.5 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counseli) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their Party and his or her heirs and their representativesrepresentatives 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.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent the Acquiror agrees that it will indemnify and hold harmless each present and former director and officer of the CompanyCompany or any of its Subsidiaries, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “"Indemnified Parties”"), against any and all costs or expenses (including reasonable attorneys’ fees and expenses' fees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “"Costs”") incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective TimeTime or arising out of any conduct of Acquiror or any of its Affiliates that imposes, results in or gives rise to an "unfair burden" on any Registered Funds for purposes of Section 15(f) of the Investment Company Act, whether asserted or claimed prior to, at or after the Effective TimeTime (including with respect to the transactions contemplated by this Agreement), to the fullest extent that the Company or such Subsidiary would have been permitted under the DGCL and law of its certificate jurisdiction of incorporation and bylaws its Constitutive Documents in effect on the date hereof to indemnify such Person person (and Parent the Acquiror shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person person to whom expenses are advanced provides an and undertaking to repay such advances if it is ultimately determined that such Person person is not entitled to indemnification); provided that any determination required to be made with respect to whether an officer's or director's conduct complies with the standards set forth under Delaware law and the Company's Constitutive Documents shall be made by independent counsel selected by the Surviving Corporation and reasonably acceptable to such officer or director.
(b) Any Indemnified Party wishing to claim indemnification under Section 6.11(a), upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify the DGCLAcquiror thereof, but the failure to so notify shall not relieve the Acquiror of any liability it may have to such Indemnified Party if such failure does not materially prejudice the indemnifying party. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (1) the Acquiror or the Surviving Corporation shall have the right to assume the defense thereof and the 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 the Acquiror or the Surviving Corporation elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between the Acquiror or the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and the Acquiror or the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that the Acquiror shall be obligated pursuant to this Section 6.11 to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction (2) the Indemnified Parties will cooperate in the defense of any such matter and (3) the Acquiror shall not be liable for any settlement effected without its prior written consent; and provided further that the Acquiror shall not have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law.
(c) Parent shall cause to be maintained, for For a period of not less than six (6) three years from the Effective Time, the Company’s current directors’ Acquiror shall use its reasonable best efforts to provide that portion of director's and officers’ officer's liability insurance policy that serves to reimburse the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former officers and directors and officers of the Company or any Subsidiary thereof, so long of the Company's Subsidiaries (determined as of the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000Effective Time) (as opposed to the “Maximum Premium”); provided that Parent may, in lieu of maintaining Company) with respect to claims against such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent arising from facts or a separate policy events which occurred before the Effective Time, which insurance shall contain at least the same coverage and amounts, and contain terms and conditions no less advantageous, as that coverage currently provided by the same insurer. If the existing D&O Insurance expiresCompany; provided; however, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed shall the Maximum PremiumAcquiror be required to expend more than 200 percent of the current amount expended by the Acquiror (such product, the "Insurance Amount") to maintain or procure such directors and officers insurance coverage; provided, further, that if the Acquiror is unable to maintain or obtain the insurance called for by this Section 6.11, the Acquiror shall use its reasonable best efforts to obtain as much comparable insurance as is available for the Insurance Amount; provided, further, that officers and directors of the Company or any Company Subsidiary may be required to make application and provide customary representations and warranties to the Acquiror's insurance carrier for the purpose of obtaining such insurance; and provided, further, that such coverage will have a single aggregate for such three-year period in an amount not less than the annual aggregate of such coverage currently provided by the Company.
(d) In If the event Parent, the Surviving Corporation Acquiror or any of their respective its successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person entity and shall not be the continuing or surviving corporation or entity of such consolidation or mergerentity, or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, then and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Acquiror shall assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable in accordance with their terms by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Samples: Merger Agreement (Us Bancorp \De\)
Indemnification; Directors’ and Officers’ Insurance. (a) From and after the Effective Time, (i) Parent will, and will cause the Surviving Corporation to, indemnify and hold harmless each present and former director or officer of the Company and (ii) Parent will cause the Surviving Corporation to indemnify and hold harmless each present or former director or officer of any subsidiary or division of the Company and each person who served at the request of the Company as a director, officer, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension, or other employee benefit plan or enterprise (the Persons indemnified under (i) and (ii) being the "Indemnified Parties"), in the case of (i) and (ii), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities and amounts paid in settlement (provided that no such settlement is entered into without the approval of Parent or the Surviving Corporation, which approval shall not be unreasonably withheld) (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time relating to the Indemnified Party's service with or at the request of the Company, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under Law (in the case of (i)) and to the fullest extent the Company would have been permitted to so indemnify under Delaware law (in the case of (ii)). In the case of (i), Parent shall, and shall cause the Surviving Corporation to, advance expenses to the fullest extent permitted under applicable Law, provided that, if required under applicable Law, the Person to whom expenses are advanced shall provide an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification. In the case of (ii), Parent shall cause the Surviving Corporation to advance expenses as incurred to the fullest extent permitted under Delaware law, provided that the Person to whom expenses are advanced shall provide an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification. The certificate indemnification rights hereunder shall be in addition to any other rights such Indemnified Party may have under the Certificate of incorporation Incorporation and bylaws Bylaws of the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise. The Certificate of Incorporation and Bylaws of the Surviving Corporation shall contain contain, and Parent shall cause the Surviving Corporation to fulfill and honor, provisions with respect to indemnification no more restrictive in scope and no less exculpation that are at least as favorable to the Indemnified Parties (as defined below) as those set forth in the certificate of incorporation and bylaws of the Company on as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after from the Effective Time in any manner that would adversely affect the rights thereunder of any of the Indemnified Parties under Parties. The parties agree that the provisions relating to exoneration of directors and officers and the rights to indemnification, including provisions relating to advances of expenses incurred in defense of any action or suit, in the certificate of incorporation or and bylaws of Company and its Subsidiaries with respect to matters occurring through the Company Effective Time, shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification in respect of actions any action pending or omissions occurring at asserted or prior to claim made within such period shall continue until the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless disposition of such modification is required by applicable lawaction or resolution of such claim.
(b) From and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of the Effective Time (each, an Any Indemnified Party andwishing to claim indemnification under paragraph (a) of this Section 6.12 shall promptly notify Parent and the Surviving Corporation, collectively, the “Indemnified Parties”), against upon learning of any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any such claim, action, suit, proceeding or investigation, actual but the failure to so notify shall not relieve Parent and the Surviving Corporation of any liability they may have to such Indemnified Party if such failure does not materially prejudice Parent and the Surviving Corporation. In the event of any such claim, action, suit, proceeding or threatened, investigation (whether civil, criminal, administrative or investigative (a “Claim”), in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at before or after the Effective Time), (i) Parent or the Surviving Corporation shall have the right to assume the fullest extent defense thereof (unless the Indemnified Parties (or any of them) determine in good faith (after consultation with legal counsel) that the Company would have been permitted under the DGCL and its certificate there are issues which raise conflicts of incorporation and bylaws in effect interest between an Indemnified Party, on the date hereof to indemnify such Person (one hand, and Parent and the Surviving Corporation on the other hand), and Parent and the Surviving Corporation shall also advance not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof (except that if Parent and the Surviving Corporation elect not to assume such defense or if there are 38 issues which raise conflicts of interest between Parent and the Surviving Corporation, on the one hand, and one or more of the Indemnified Parties, on the other, the Indemnified Parties may retain counsel satisfactory to them, and Parent and the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as incurred statements therefor are received); provided, however, that Parent and the Surviving Corporation shall be obligated pursuant to this paragraph (b) to pay for only one firm of counsel (in addition to local counsel) for all Indemnified Parties in any jurisdiction (unless there is such a conflict of interest), (ii) the fullest extent permitted under applicable law provided Indemnified Parties will cooperate in the Person to whom expenses are advanced provides an undertaking to repay defense of any such advances if it is ultimately determined that such Person is matter and (iii) Parent and the Surviving Corporation shall not entitled to indemnification under the DGCL)be liable for any settlement effected without their prior written consent, which consent shall not be unreasonably withheld.
(c) Parent shall cause the Surviving Corporation to be maintained, for maintain a period policy of not less than six (6) years from the Effective Time, the Company’s current officers' and directors’ and officers’ ' liability insurance policy to covering the extent that it provides coverage Indemnified Parties for events acts and omissions occurring on or prior to the Effective Time (the “"D&O Insurance”") for all present with coverage in amount and former directors and officers of the Company or any Subsidiary thereof, so long scope at least as favorable as the aggregate premium therefor would not be in excess Company's existing directors' and officers' liability insurance coverage for a period of Four Million Dollars ($4,000,000) (six years after the “Maximum Premium”)Effective Time; provided that Parent mayprovided, in lieu of maintaining such existing D&O Insurance as provided abovehowever, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If if the existing D&O Insurance expires, is terminated or canceled by the insurer canceled, or if the aggregate annual premium would exceed therefor is increased to an amount in excess of 200% of the Maximum last annual premium paid prior to the date of this Agreement (the "Current Premium"), in each case during such six-year period, Parent shall obtain, and the Surviving Corporation will use their best efforts to obtain D&O Insurance in lieu of such D&O Insurance, the maximum directors’ an amount and officers’ liability insurance coverage that scope as great as can be obtained for the remainder of such period by paying for a premium not in excess (on an annualized basis) of 200% of the Maximum Current Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to . The provisions of this Section 6.11(c6.12(c) shall be deemed to have been satisfied if prepaid policies have been obtained by the Company prior to the Closing, which policies provide such directors and officers with coverage for an aggregate period of six years with respect to claims arising from facts or events that occurred on or before the Effective Time, including, without limitation, in no event exceed respect of the Maximum Premiumtransactions contemplated by this Agreement and for a premium not in excess of the aggregate of the premiums set forth in the preceding sentence. If such prepaid policies have been obtained by the Company prior to the Closing, Parent shall and shall cause the Surviving Corporation to maintain such policies in full force and effect, and continue to honor the Company's obligations thereunder.
(d) In the event Parent, If Parent or the Surviving Corporation or any of their respective its successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, thencorporation or other entity, then and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume all of the obligations set forth in this Section. Parent shall (in the case of Section 6.116.12(a)(i)), and Parent shall cause the Surviving Corporation (in the case of Section 6.12(a)(ii)), to pay all expenses, including reasonable attorneys' fees, that may be incurred by the Indemnified Parties in successfully enforcing the indemnity and other rights in this Section 6.12.
(e) Parent shall cause the Surviving Corporation to perform its obligations under this Section 6.12 and shall, in addition, guarantee, as co-obligor with the Surviving Corporation, the performance of such obligations by the Surviving Corporation subject to the limits imposed on the Surviving Corporation under the DGCL.
(f) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that shall cause the Surviving Corporation to honor, and shall itself honor as if it will indemnify and hold harmless were the Surviving Corporation, all rights to indemnification (including rights relating to advancement of expenses) or exculpation existing in favor of each present and former director and officer of the CompanyCompany or any of its Subsidiaries (in each case, (when acting in such capacity) ), determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against with respect to any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL Delaware law and its certificate of incorporation and or bylaws in effect on the date hereof to indemnify such Person (and Parent or the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under applicable law Law, provided that the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined in the event of a non-appealable determination of a court of competent jurisdiction that such Person is not entitled to indemnification); and provided, further, that any determination required to be made with respect to whether an officer’s or director’s conduct complies with the standards set forth under Delaware law and the Company’s certificate of incorporation and bylaws shall be made by independent counsel jointly selected by the Surviving Corporation and the Indemnified Party.
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 6.11, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the DGCLSurviving Corporation thereof, but the failure to so notify shall not relieve the Surviving Corporation of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the indemnifying party. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Surviving Corporation shall have the right to assume the defense thereof and Parent and the Surviving Corporation shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if the Surviving Corporation elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Parent or the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that the Surviving Corporation shall be obligated pursuant to this paragraph (b) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, provided that the fewest number of counsels necessary to avoid conflicts of interest shall be used (ii) the Indemnified Parties will cooperate in the defense of any such matter, and (iii) Parent and the Surviving Corporation shall not be liable for any settlement effected without their prior written consent; and provided, further, that Parent and the Surviving Corporation shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law.
(c) Parent shall cause Prior to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current Company shall obtain and fully pay the premium for the extension of (i) the Side A coverage part (directors’ and officers’ liability) of the Company’s existing directors’ and executive officers’ insurance policies, and (ii) the Company’s existing fiduciary liability insurance policy policies (collectively the “Tail Insurance”), for a claims reporting or discovery period of at least six years from and after the Effective Time from an insurance company or companies with the same or better credit rating from AM Best Company as the Company’s current insurance companies on its existing directors’ and officers’ insurance policies and fiduciary liability insurance policies, with terms, conditions, retentions and limits of liability that are at least as favorable as such 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 extent Company solely by reason of their serving in such capacity, that it provides coverage for events occurring existed or occurred at or prior to the Effective Time (including in connection with this Agreement or the “D&O Insurance”transactions or actions contemplated hereby); provided, however, that in no event shall the Company expend for such policies a premium amount in excess of the amount set forth in Section 6.11(c) for all present and former directors and officers 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, obtain such policies and, pending the effectiveness of such policies, continue to maintain in effect for a period of at least six years from and after the Effective Time the Tail Insurance in place as of the date hereof with benefits and levels of coverage at least as favorable as provided in the Company’s existing policies as of the date hereof, or any Subsidiary thereofthe Surviving Corporation shall, so long and Parent shall cause the Surviving Corporation to, use reasonable best efforts to purchase comparable Tail Insurance for such six-year period with benefits and levels of coverage at least as favorable as provided in the aggregate 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 an annual premium therefor would not be amount in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit 300% of the directors and officers of Parent or a separate policy provided annual premiums currently paid by the same insurer. If the existing D&O Insurance expiresCompany for such insurance; and, is terminated or canceled by the insurer or provided further that if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu annual premiums of such D&O Insuranceinsurance coverage exceed such amount, the maximum directors’ and officers’ liability insurance Surviving Corporation shall obtain a policy with the greatest coverage that can be obtained available for the remainder of a cost not exceeding such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premiumamount.
(d) In the event Parent, If Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume all of the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties.
(f) The rights of the Indemnified Parties under this Section 6.11 shall be in addition to any rights such Indemnified Parties may have under the certificate of incorporation or bylaws of the Company or any of its Subsidiaries, their heirs and their representativesor under any applicable Contracts or Laws.
Appears in 1 contract
Samples: Merger Agreement (Hydril Co)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will shall, and shall cause the Surviving Corporation to, indemnify and hold harmless each present and former director and officer of the Company, Company (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of or pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person applicable Law (and Parent the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under applicable law Law, provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification); provided, however, that Parent and the Surviving Corporation shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law.
(b) Any Indemnified Party wishing to claim indemnification under Section 5.9(a), upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the DGCLSurviving Corporation thereof, but the failure to so notify shall not relieve Parent and the Surviving Corporation of any liability they may have to such Indemnified Party except to the extent such failure prejudices Parent or the Surviving Corporation, as the case may be. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Surviving Corporation shall have the right to assume the defense thereof and the Surviving Corporation shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if the Surviving Corporation elects not to assume such defense or counsel for the Indemnified Parties reasonably advises that there are issues which raise conflicts of interest between the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly; provided, however, that the Surviving Corporation shall be obligated pursuant to this Section 5.9(b) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction (unless there is a conflict of interest as provided above, in which case the fewest number of counsels necessary to avoid conflicts of interest shall be used), (ii) the Indemnified Parties will cooperate in the defense of any such matter and (iii) the Surviving Corporation shall not be liable for any settlement effected without its prior written consent.
(c) Parent shall cause the Surviving Corporation to be maintained, and the Surviving Corporation shall maintain a policy of officers’ and directors’ liability insurance for a period of not less than six (6) years from acts and omissions occurring prior to the Effective Time, Time (“D&O Insurance”) with coverage in amount and scope at least as favorable as the Company’s current directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”described in Section 5.9(c) for all present and former directors and officers of the Company or any Subsidiary thereofLetter for a period of six years after the Effective Time; provided, so long as however, that, if the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the then existing D&O Insurance expires, is terminated or canceled by the insurer cancelled, or if the aggregate annual premium would exceed therefor is increased to an amount in excess of 200% of the Maximum premium stated in Section 5.9(c) of the Company Letter (the “Current Premium, Parent shall obtain”), in lieu of each case during such D&O Insurancesix year period, the maximum directors’ Surviving Corporation will use its reasonable best efforts to obtain D&O Insurance in an amount and officers’ liability insurance coverage that scope as great as can be obtained for the remainder of such period by paying for a premium not in excess (on an annualized basis) of 200% of the Maximum Current Premium; and provided, provided further that aggregate premiums payable by in lieu of such coverage, Parent may substitute a prepaid “tail” policy for such coverage, which the Company agrees to obtain prior to the Effective Time upon request of Parent. Prior to the Effective Time the Company shall assist Parent as requested in determining the manner in which Parent will comply with the obligations of this Section 5.9(c), but the Company shall not modify, increase, or extend its D&O Insurance pursuant for any period beyond the current policy period (and, to this Section 6.11(c) shall in no event exceed the Maximum Premiumextent the current period would lapse prior to the Effective Time, one year beyond the current period), obtain any “tail” policy or obtain new D&O Insurance or prepay any D&O Insurance, without Parent’s prior consent.
(d) In the event Parent, the Surviving Corporation If Parent or any of their respective its successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, thencorporation or other entity, then and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume all of the obligations set forth in this Section 6.115.9.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 5.9 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation From the REIT Merger Effective Time and bylaws ending on the sixth (6th) anniversary of the Surviving Corporation shall contain provisions with respect to REIT Merger Effective Time, without limiting any additional rights that any director, officer, employee, or agent may have under any indemnification no more restrictive in scope and no less favorable to agreement or under the Indemnified Parties (as defined below) as set forth in Company Organizational Documents or the certificate of incorporation and bylaws organizational documents of the Company on Subsidiaries in effect as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitationhereof, the transactions contemplated by this Agreement)Parent Parties shall, unless such modification is required by applicable law.
jointly and severally: (bi) From and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer Person who is at the date hereof, was previously, or during the period from the date hereof through the Closing Date, serving as a director, officer, employee or agent of the Company, (when Company Parties or any of their Subsidiaries and acting in such capacity) determined as of the Effective Time capacity (each, an Indemnified Party and, collectively, the “Indemnified Parties”)) to the fullest extent authorized or permitted by applicable Law, against as now or hereafter in effect, in connection with any costs or expenses (including reasonable attorneys’ fees Claim and expenses)any losses, claims, damages, liabilities, costs, Claim Expenses, judgments, fines, losses, penalties and amounts paid in settlement claims(including all interest, damages assessments and other charges paid or liabilities (collectively, “Costs”) incurred payable in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), in whole or in part based on respect of any thereof) relating to or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL resulting from such Claim; and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL).
(c) Parent shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to promptly pay on behalf of, or, after any Personrequest for advancement, then, and in each such caseadvance, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.to the fullest extent authorized or permitted by applicable Law, as now or hereafter in effect, any Claim Expenses incurred in defending, serving as a witness with respect to or otherwise participating with respect to any Claim in advance of the final disposition of such Claim, including payment on behalf of or advancement to the Indemnified Party of any Claim Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to such indemnification and/or advancement, in each case without the requirement of any bond or other security, but subject to the Parent Parties’ receipt of a written undertaking by or on behalf of such Indemnified Party to repay such Claim Expenses if it is ultimately determined under applicable Laws that such Indemnified Party is not entitled to be indemnified; provided, that the Parent Parties shall not be liable for any amounts paid in settlement effected without its prior written consent (which consent shall not be unreasonably
Appears in 1 contract
Samples: Master Transaction Agreement (MGM Growth Properties Operating Partnership LP)
Indemnification; Directors’ and Officers’ Insurance. (a) The For a period of six years after the Effective Time, unless otherwise required by applicable law, Parent shall cause the respective certificate of incorporation and bylaws by-laws (or equivalent organizational documents) of the Surviving Corporation shall and each of its Subsidiaries to contain provisions no less favorable with respect to the exculpation from personal liability and indemnification no more restrictive in scope of and no less favorable advancement of expenses to the Indemnified Parties (as defined below) as directors, officers, employees and agents than are set forth in the certificate Certificate of incorporation Incorporation or the By-laws (or equivalent organizational documents of the relevant Subsidiary of the Company) as in effect on the date hereof; provided, however, that if any claim or claims are asserted against any individual entitled to the protections of such provisions within such six-year period, such provisions shall not be modified until the final disposition of any such claims. Parent shall cause the Company to indemnify and bylaws advance expenses to, and shall itself indemnify and advance expenses to as if it were the Company, each present and former director, officer, employee, agent or employee benefit plan fiduciary (an “Indemnified Person”) of the Company or any of its Subsidiaries (including rights relating to advancement of expenses and indemnification rights to which such persons are entitled because they are serving as a director, officer, agent or employee of another entity at the request of the Company or any of its Subsidiaries) in respect of actions, omissions or events through the Effective Time to the fullest extent provided in the Certificate of Incorporation or the By-laws or the organizational documents of any Subsidiary of the Company, as applicable, any indemnification agreement or under applicable laws, in each case, as in effect on the date of this Agreement; provided, which provisions however, that any determination required to be made with respect to whether an Indemnified Person’s conduct complies with the standards set forth under the applicable law, the Certificate of Incorporation or By-laws or the organizational documents of any Subsidiary of the Company, as applicable, or any such agreement, as the case may be, shall not be amendedmade by independent legal counsel jointly selected by such Indemnified Person and Parent; and provided, repealed or otherwise modified for a period further, that nothing in this Section 7.9 shall impair any rights of six (6) years after any Indemnified Person. Without limiting the Effective Time generality of the preceding sentence, if any Indemnified Person becomes involved in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation actual or bylaws of the Company in respect of actions threatened action, suit, claim, proceeding or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated investigation covered by this Agreement), unless such modification is required by applicable law.
(b) From and Section 7.9 after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer of shall, or shall cause the Company, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior Company to, at or after the Effective Time, to the fullest extent that permitted by law, promptly advance to such Indemnified Person his or her legal or other expenses (including the Company would have been permitted under the DGCL cost of any investigation and its certificate of incorporation and bylaws preparation incurred in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred connection therewith), subject to the fullest extent permitted under applicable law provided the providing by such Indemnified Person to whom expenses are advanced provides of an undertaking to repay such advances if it is ultimately determined reimburse all amounts so advanced in the event of a non-appealable determination of a court of competent jurisdiction that such Indemnified Person is not entitled thereto; provided, that such obligation on the part of Parent shall cease six years after the Effective Time except with respect to indemnification under any action, suit, claim, proceeding or investigation covered by this Section 7.9 made or filed prior to the DGCL)sixth anniversary of the Effective Time.
(cb) Parent The Company shall cause to be maintained, purchase an extended reporting period for a period of not less than six (6) years from the Effective Time, the Company’s current its existing directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers a period of six years after the Effective Time so long as the premium therefor is not in excess of 300% of the last annual premium paid prior to the date hereof (the “Current Premium”); provided, however, that if no extended reporting period is available for such six-year period or is at a premium in excess of 300% of the Current Premium, the Company will use its reasonable best efforts to obtain as much D&O Insurance as can be obtained for a premium not in excess of 300% of the Current Premium.
(c) If Parent or the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event Parent, the Surviving Corporation or any of their respective its successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or shall cease to continue to exist for any reason or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving CorporationCompany, as the case may beapplicable, shall assume all of the obligations set forth in this Section 6.117.9.
(ed) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 7.9 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Person, his or her heirs, executors or similar representatives, shall be binding on all successors and assigns of Parent, the Company and the Surviving Corporation and shall not be amended in a manner that is adverse to the Indemnified Persons (including their successors, assigns and heirs) without the consent of the Indemnified PartiesPerson (including the successors, their heirs assigns and their representativesheirs) affected thereby.
Appears in 1 contract
Samples: Merger Agreement (Servicemaster Co)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will Buyer (the “Indemnifying Party”) shall indemnify and hold harmless each present and former director director, officer and officer employee of the Company, Company or any of its Subsidiaries (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”)) and any person who becomes an Indemnified Person between the date hereof and the Effective Time, against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) and amounts paid in settlement incurred after the Effective Time in connection with any actual or threatened claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, based in whole or in part, or arising in whole or in part out of, or pertaining to the fullest fact that he or she was a director, officer or employee of Company or is or was serving at the request of Company or any of its Subsidiaries as a director, officer, employee, trustee or other agent of any other organization or in any capacity with respect to any employee benefit plan of Company, including without limitation any matters arising in connection with or related to the negotiation, execution and performance of this Agreement or any of the transactions contemplated hereby, to the full extent that to which such Indemnified Parties would be entitled to have the Company would have been permitted right to advancements of expenses or to be indemnified under the DGCL Articles of Organization and its certificate Bylaws of incorporation and bylaws Company as in effect on the date hereof of this Agreement as though such Articles of Organization and Bylaws continue to indemnify remain in effect after the Effective Time and as permitted by applicable Law. Buyer’s obligations under this Section 5.10(a) shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification in respect of any claim asserted or made within such Person (period shall continue until the final disposition of such claim. Buyer and Parent shall the Surviving Entity may also advance expenses as incurred to the fullest full extent permitted under applicable law provided Law; provided, however that the Person Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by a court of competent jurisdiction that such Person person is not entitled to indemnification.
(b) Any Indemnified Party wishing to claim indemnification under this Section 5.10, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify the DGCLIndemnifying Party, but the failure to so notify shall not relieve the Indemnifying Party of any liability it may have to such Indemnified Party if such failure does not actually prejudice the Indemnifying Party and, if so, only to the extent of such actual prejudice. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Indemnifying Party shall have the right to assume the defense thereof and the Indemnifying Party 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 the Indemnifying Party elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between the Indemnifying Party and the Indemnified Parties, the Indemnified Parties may retain counsel which is reasonably satisfactory to the Indemnifying Party, and the Indemnifying Party shall pay, promptly as statements therefor are received, the reasonable fees and expenses of such counsel for the Indemnified Parties (which may not exceed one firm in any jurisdiction), (ii) the Indemnified Parties will cooperate in the defense of any such matter, (iii) the Indemnifying Party shall not be liable for any settlement effected without its prior written consent and (iv) the Indemnifying Party shall have no obligation hereunder in the event that a federal or state banking agency or a court of competent jurisdiction shall determine that indemnification of an Indemnified Party in the manner contemplated hereby is prohibited by applicable Laws and regulations.
(c) Parent Prior to the Effective Time, Company shall and if Company is unable to, Buyer shall cause the Surviving Entity as of the Effective Time to be maintainedobtain and fully pay the premium for the extension of Company’s existing directors’ and officers’ insurance policies, in each case for a claims reporting or discovery period of not less than at least six (6) years from and after the Effective Time, Time from an insurance carrier with the same or better credit rating as Company’s current insurance carrier with respect to directors’ and officers’ liability insurance policy (“D&O Insurance”) with terms, conditions, retentions and limits of liability that are at least as favorable to the extent Indemnified Parties as 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 Company or any of its Subsidiaries by reason of him or her serving in such capacity that it provides coverage for events occurring 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 Company expend, or Buyer or the Surviving Entity be required to expend, for such “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as tail” policy in the aggregate and on an annual basis a premium therefor would not be amount in excess of Four Million Dollars ($4,000,000) an amount (the “Maximum D&O Tail Premium”); provided that Parent may, in lieu ) equal to (x) 200% of maintaining such existing the annual premiums paid by Company for D&O Insurance in effect as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers date of Parent or a separate policy provided by this Agreement less (y) the same insurer. If premium credit, if any, to which Company is entitled on account of the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for Merger under the D&O Insurance pursuant in effect immediately prior to this Section 6.11(c) shall in no event exceed the Effective Time; provided further, that if the cost of such a tail policy exceeds the Maximum D&O Tail Premium, Company, Buyer or the Surviving Entity shall obtain a tail policy with the greatest coverage available for a cost not exceeding Maximum D&O Tail Premium.
(d) In the event Parent, the Surviving Corporation If Buyer or any of their respective its successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personother entity, then, then and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Buyer shall assume the obligations set forth in this Section 6.115.10.
(e) The provisions 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 Company or its officers, directors and employees, and that the indemnification of this Section 6.11 are in addition 5.10(e) is not a substitute for any such claims under any such policies.
(f) Any indemnification payments made pursuant to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this 5.10 are subject to and conditioned upon their compliance with Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each 18(k) of the Indemnified Parties, their heirs Federal Deposit Insurance Act (12 U.S.C. 1828(k)) and their representativesthe regulations promulgated thereunder by the Federal Deposit Insurance Corporation (12 C.F.R. Part 359).
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation Company shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify and hold Executive harmless each present for all acts and former director and officer omissions occurring during his employment with the Company or service as a member of the Board to the maximum extent permitted under the Company’s charter, by-laws or applicable law, and shall promptly (when acting in such capacitywithin 15 business days) determined as of the Effective Time (eachadvance to Executive or Executive’s heirs or representatives all defense costs and damages, an Indemnified Party andliabilities, collectively, the “Indemnified Parties”), against any costs or expenses and losses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities ) (collectively, “CostsExpenses”) incurred in connection with relating to any claim, actiondemand, suitrequest, proceeding formal or informal investigation, actual dispute, controversy, threat, discovery request or threatenedrequest for testimony or information (collectively, a “Claim”) or any proceeding (whether civil, criminal, administrative or investigative (a “Claim”investigative), in whole or in part based on any threatened Claim or arising in whole proceeding (whether civil, criminal, administrative or in part investigative), against Executive that arises out of matters existing or occurring at relates to Executive’s service as an officer, director or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL).
(c) Parent shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporationemployee, as the case may be, assume of the obligations set forth Company, or the Executive’s service in this Section 6.11.
(e) The provisions any such capacity or similar capacity with an affiliate of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or other entity at the request of the Company, upon receipt by the Company of a written request with appropriate documentation of such Expenses, and an undertaking by Executive to repay the amount advanced if it shall ultimately be determined in a final and nonappealable ruling by a court that Executive is not entitled to be indemnified by the Company against such Expenses. During the Employment Term and for a term of six years thereafter, the Company, or any successor to the Company, shall purchase and maintain, at its own expense, directors and officers liability insurance providing coverage for Executive in the same amount as for members of its Subsidiaries the Board. To the fullest extent permitted by law, Executive shall have the right to institute a proceeding to enforce the rights of indemnification and of advancement of Expenses created by, or under provided pursuant to the terms of, this Agreement, any later agreement between Executive and the Company, the Company’s charter or by-laws, or other applicable law. Parent agrees , and the Company shall advance to pay all Executive (within 15 business days after receipt of invoices from Executive) his costs and expenses (including reasonable fees and expenses attorney’s fees) incurred in the prosecution of counsel) such a proceeding. In any such proceeding, the burden of proving that may be incurred by any Indemnified Party in successfully enforcing the indemnity indemnification or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and advancement are intended to be for the benefit of, and not appropriate shall be enforceable by, each of on the Indemnified Parties, their heirs and their representativesCompany.
Appears in 1 contract
Samples: Employment Agreement (Brixmor Operating Partnership LP)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will the Surviving Entity shall indemnify and hold harmless and shall advance expenses as incurred, in each case, to the fullest extent permitted by applicable law, the Atlantic Capital Articles, the Atlantic Capital Bylaws and the governing or organizational documents of any Atlantic Capital Subsidiary, each present and former director director, officer or employee of Atlantic Capital and officer of the Companyits Subsidiaries (in each case, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Atlantic Capital Indemnified Parties”), ) against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (investigative, whether arising before or after the Effective Time, arising out of, or pertaining to, the fact that such person is or was a “Claim”)director, in whole officer or in part based on employee of Atlantic Capital or arising in whole any of its Subsidiaries and pertaining to matters, acts or in part out of matters omissions existing or occurring at or prior to the Effective Time, whether asserted including matters, acts or claimed prior toomissions occurring in connection with the approval of this Agreement and the transactions contemplated by this Agreement; provided, at or after that in the Effective Timecase of advancement of expenses, to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person any Atlantic Capital Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person Atlantic Capital Indemnified Party is not entitled to indemnification. The Surviving Entity shall reasonably cooperate with the Atlantic Capital Indemnified Parties, and the Atlantic Capital Indemnified Parties shall reasonably cooperate with the Surviving Entity, in the defense of any such claim, action, suit, proceeding or investigation. Without limiting the indemnification under and other rights provided in this clause (a), all rights to indemnification and all limitations on liability existing in favor of the DGCL)Atlantic Capital Indemnified Parties as provided in any indemnification agreement in existence on the date of this Agreement and set forth on Section 6.8 of the Atlantic Capital Disclosure Schedule shall survive the Merger and shall continue in full force and effect to the fullest extent permitted by law, and shall be honored by the Surviving Entity and its Subsidiaries or their respective successors as if they were the indemnifying party thereunder, without any amendment thereto.
(cb) Parent shall cause to be maintained, for For a period of not less than six (6) years from after the Effective Time, the Company’s Surviving Entity shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance policy maintained by Atlantic Capital (provided, that the Surviving Entity may substitute therefor policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions that are no less advantageous to the extent insured) with respect to claims against the present and former officers and directors of Atlantic Capital or any of its Subsidiaries arising from facts or events which occurred at or before the Effective Time (including the approval of the transactions contemplated by this Agreement); provided, however, that it provides the Surviving Entity shall not be obligated to expend, on an annual basis, an amount in excess of 300% of the current annual premium paid as of the date hereof by Atlantic Capital for such insurance (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then the Surviving Entity shall cause to be maintained policies of insurance which, in the Surviving Entity’s good faith determination, provide the maximum coverage for events occurring available at an annual premium equal to the Premium Cap. In lieu of the foregoing, South State or Atlantic Capital, in consultation with, but only upon the consent, of South State, may (and at the request of South State, Atlantic Capital shall use its reasonable best efforts to) obtain at or prior to the Effective Time a six (the 6)-year “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such tail” policy under Atlantic Capital’s existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance policy providing equivalent coverage to that can described in the preceding sentence if and to the extent that the same may be obtained for an amount that, in the remainder aggregate, does not exceed 300% of such period the current annual premium paid as of the date hereof by paying Atlantic Capital for its existing directors’ and officers’ insurance policy.
(c) The obligations of the Maximum PremiumSurviving Entity, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to South State or Atlantic Capital under this Section 6.11(c) 6.8 shall not be terminated or modified after the Effective Time in no event exceed a manner so as to adversely affect any Atlantic Capital Indemnified Party or any other person entitled to the Maximum Premiumbenefit of this Section 6.8 without the prior written consent of the affected Atlantic Capital Indemnified Party or affected person.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 6.8 shall survive the Merger Effective Time and are intended to be for the benefit of, and shall be enforceable by, each Atlantic Capital Indemnified Party and his or her heirs and representatives. If the Surviving Entity or any of its successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving entity of such consolidation or merger, or (ii) transfers all or substantially all of its assets or deposits to any other person or engages in any similar transaction, then in each such case, the Surviving Entity will cause proper provision to be made so that the successors and assigns of the Indemnified Parties, their heirs and their representativesSurviving Entity will expressly assume the obligations set forth in this Section 6.8.
Appears in 1 contract
Samples: Merger Agreement (SOUTH STATE Corp)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of For six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will shall indemnify and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as Company or any of the Effective Time its Subsidiaries (each, an Indemnified Party and, collectively, the “Indemnified PartiesParty”), ) against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, claims, damages, amounts paid in settlement claims, damages (subject to the prior consent of Parent) or liabilities (collectively, “Costs”) incurred in connection with any claimactions, actionsuits, suit, proceeding claims or investigation, actual or threatenedproceedings, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of or pertaining to matters existing or occurring at or prior to the Effective TimeTime (including the Merger and all transactions contemplated by this Agreement), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that Company or any of its Subsidiaries, as the Company case may be, would have been permitted under the DGCL and its certificate of incorporation and bylaws their respective organizational documents in effect on the date hereof of this Agreement subject to limitations imposed by applicable Law to indemnify such Person (and Parent shall also advance including the advancing of expenses as incurred to the fullest extent permitted under applicable law provided Law); provided, the Person to whom such expenses are advanced provides an undertaking to Parent to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL)indemnification.
(cb) Parent shall cause the individuals serving as officers and directors of Company or any Subsidiary of Company immediately prior to the Effective Time to be maintained, covered for a period of not less than six (6) years from the Effective Time, Time by the Company’s current directors’ and officers’ liability insurance policy maintained by Company (provided that Parent may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are not less advantageous than such policy) with respect to the extent that it provides coverage for events acts or omissions occurring prior to the Effective Time that were committed by such officers and directors in their capacity as such; provided that in no event shall Parent be required to expend annually in the aggregate an amount in excess of 200% of the annual premiums currently paid by Company (which current amount is set forth in Section 6.7(b) of the Disclosure Schedule) for such insurance (the “D&O InsuranceInsurance Amount”), provided, further, that if Parent is unable to maintain such policy (or such substitute policy) for all present and former directors and officers as a result of the Company or any Subsidiary thereofpreceding proviso, so long Parent shall obtain as much comparable insurance as is available for the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”)Insurance Amount; provided provided, further, that Parent may, in lieu of maintaining the foregoing insurance coverage, Parent may direct Company to purchase (and only upon such existing D&O Insurance as provided above, cause direction shall Company purchase) a three-year prepaid “tail policy” that provides coverage no less favorable than the coverage described above; provided, further, that if the annual premiums for such “tail” policy exceed the Insurance Amount, then Parent may direct Company to be provided under any obtain a “tail” policy maintained with the maximum coverage available for the benefit of Insurance Amount applied over the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu term of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premiumpolicy.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(ec) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 6.7 are intended to be for the benefit of, of and shall be enforceable by, each of the Indemnified Parties, Party and their respective heirs and their representatives.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will the Combined Company shall indemnify and hold harmless and shall advance expenses as incurred, in each present and former director and officer of case to the maximum extent permitted by applicable Law, (i) the Company, (when acting in its directors, officers and representatives and such capacity) determined other Persons that are indemnified as of the Effective Time date of this Agreement by the Company pursuant to the Organizational Documents of the Company (each, an Indemnified Party andtogether with the Members pursuant to the clause (ii) below, collectively, the “Company Indemnified Parties”)) and such Persons that are indemnified as of the date of this Agreement by the Purchaser pursuant to the Organizational Documents of the Purchaser (collectively, the “Purchaser Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgmentsJudgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding threatened or investigation, actual or threatenedProceeding, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole whether arising before or in part based on or after the Effective Time, arising in whole or in part out of the fact that such Person is or was a director, officer or employee of the Company or the Purchaser, as the case may be, and pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted including (A) the transactions contemplated by this Agreement and (B) the matters set forth on Section 5.5 of the Purchaser Disclosure Schedule and (ii) each Member (for the avoidance of doubt, in such Member’s personal capacity) against any costs or claimed prior toexpenses (including reasonable attorneys’ fees), at Judgments, fines, losses, damages or after liabilities with respect to Taxes incurred by such Member in connection with the Effective Timetransactions contemplated by this Agreement; provided, to that in the fullest extent that the case of advancement of expenses, any Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person Indemnified Party or Purchaser 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 under the DGCL)indemnification.
(cb) Parent The provisions of this Section 6.10 shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to survive the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage are intended to be provided under any policy maintained for the benefit of, and shall be enforceable by, each Company Indemnified Party, Purchaser Indemnified Party and their respective heirs and Representatives, and each of the directors and officers foregoing Persons shall be an express third-party beneficiary of Parent or a separate policy provided by the same insurerthis Section 6.10. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event ParentCombined Company, the Surviving Corporation Entity or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall is 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 Personother Person or engages in any similar transaction, then, and then in each such case, to the extent necessary, Combined Company or the Surviving Entity will cause proper provision shall to be made so that the successors and assigns of Parent the Combined Company or the Surviving CorporationEntity, as the case may beapplicable, will expressly assume the obligations set forth in this Section 6.116.10.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Creek Road Miners, Inc.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, the Parent agrees that it will indemnify and the Surviving Corporation shall indemnify, defend and hold harmless each present and former person who is now, or has been at any time prior to the date hereof or who becomes prior the Effective Time, an officer, director and officer or employee of the Company, Company or any of its subsidiaries (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “"Indemnified Parties”)") against (i) all losses, against any costs or claims, damages, costs, expenses (including reasonable attorneys’ ' fees and expenses), judgments, fines, losses, liabilities or judgments or amounts that are paid in settlement claims, damages of or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), investigation based in whole or in part based on or arising in whole or in part out of matters the fact that such person is or was a director, officer or employee of the Company or any subsidiary of the Company, whether pertaining to any matter existing or occurring at or prior to the Effective Time, Time and whether asserted or claimed prior to, or at or after, the Effective Time (the "Indemnified Liabilities") and (ii) all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to this agreement, the transactions contemplated hereby or the financing thereof, in each case to the full extent the Company is permitted under Delaware law and would have been permitted under its Certificate of Incorporation and By-laws as they existed prior to the Effective Time to indemnify such person (and the Surviving Corporation shall pay expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the full extent permitted by law upon receipt of any undertaking required by Section 145(e) of the DGCL), provided that neither the Parent not the Surviving Corporation shall be liable for any settlement of any claim effected without its written consent, which consent, however, shall not be unreasonably withheld. Without limiting the foregoing, in the event any such claim, action, suit, proceeding or investigation is brought against any Indemnified Parties (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time must be reasonably satisfactory to the fullest Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received, and (iii) after the Effective Time, the Parent and the Surviving Corporation shall use all reasonable efforts to assist in the vigorous defense of any such matter. Any Indemnified Party wishing to claim indemnification under this Section 5.8 shall within 20 days of becoming aware of such claim, action, suit, proceeding or investigation, notify the Parent and the Surviving Corporation and shall deliver to the Surviving Corporation the undertaking, if any, required by Section 145(e) of the DGCL; provided, however, that the rights of the Indemnified Party to be indemnified hereunder shall not be adversely affected by its failure to give notice pursuant to the foregoing unless and only to the extent that the Company Parent and the Surviving Corporation are prejudiced thereby. The Parent and the Surviving Corporation shall be liable for the fees and expenses hereunder with respect to only one law firm, in addition to local counsel in each applicable jurisdiction, to represent the Indemnified Parties as a group with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict between the positions of any two or more Indemnified Parties that would have been permitted under preclude or render inadvisable joint or multiple representation of such parties.
(b) For a period of six years after the DGCL and its certificate of incorporation and bylaws Effective Time, the Parent shall cause the Surviving Corporation to maintain in effect on the date hereof to indemnify such Person current policies of directors' and officers' liability insurance maintained by the Company (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage and Parent shall also advance expenses as incurred amounts containing terms and conditions which are no less advantageous to the fullest extent permitted under applicable law provided Indemnified Parties and underwritten by an insurance carrier of at least as favorable a financial rating) with respect to claims arising from facts or events which occurred before 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 under the DGCL)Effective Time.
(c) Parent shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event Parent, the Surviving Corporation or any of their respective its successors or assigns (i) consolidates with or merges into any other Person person and shall 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 assets to any Personperson, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation assume the obligations set forth in this Section 6.115.8.
(ed) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses 5.8: (including reasonable fees and expenses of counseli) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified PartiesParty, their his heirs and their his 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 contract or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Glasstech Inc)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of For six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitationTime, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will Surviving Corporation shall indemnify and hold harmless each present and former director and officer of the Company, Company or any of its Subsidiaries (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Company Indemnified Parties”), ) against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claimactions, actionsuits, suit, proceeding claims or investigation, actual or threatenedproceedings, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of or pertaining to matters existing or occurring at or prior to the Effective Time, including matters, acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that Company or any of its Subsidiaries, as the Company case may be, would have been permitted under the DGCL and its certificate of incorporation and bylaws their respective organizational documents in effect on the date hereof of this Agreement, subject to limitations imposed by applicable law and Regulatory Agencies, to indemnify such Person Company Indemnified Party (and Parent shall also advance including the advancing of expenses as incurred to the fullest extent permitted under applicable law provided law); provided, the Person Company Indemnified Party to whom such expenses are advanced provides an undertaking to the Surviving Corporation to repay such advances if it is ultimately determined that such Person Company Indemnified Party is not entitled to indemnification under the DGCL)indemnification.
(cb) Company shall purchase prior to the Closing, and following the Closing Parent shall cause to be maintainedmaintained in effect until the expiration thereof, for a period of not less than six (6) years from the Effective Time, the Company’s current year prepaid directors’ and officers’ liability insurance policy to the extent “tail policy” that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance covering those individuals who are currently covered by the Company’s directors’ and officers’ liability insurance policies (true, correct and complete copies of which have been heretofore delivered to Parent) with coverage that can be obtained for no less favorable, as a whole, than the remainder terms of such period by paying current insurance coverage with respect to claims arising from or related to facts or events which occurred at or prior to the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum PremiumEffective Time.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(ec) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 6.8 shall survive the Merger Effective Time and are intended to be for the benefit of, and shall be enforceable by, each Company Indemnified Party and his or her heirs and representatives. If the Surviving Corporation or any of its successors or assigns, consolidates with or merges into any other entity and is not the continuing or surviving entity of such consolidation or merger, transfers all or substantially all of its assets or deposits to any other entity or engages in any similar transaction, then in each case, the Surviving Corporation will cause proper provision to be made so that the successors and assigns of the Surviving Corporation will expressly assume the obligations set forth in this Section 6.8. For the avoidance of doubt, to the extent required by any agreement previously entered into by Company in connection with a merger, acquisition or other business combination, the provisions of this Section 6.8 shall apply to directors, officers, employees and fiduciaries of predecessor entities previously acquired by Company or any of its Subsidiaries.
(d) The obligations of the Surviving Corporation, Parent and Company under this Section 6.8 shall not be terminated or modified in a manner so as to adversely affect any Company Indemnified Parties, their heirs and their representativesParty or any other person entitled to the benefit of this Section 6.8 without the prior written consent of the affected Company Indemnified Party.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will shall, and shall cause the Surviving Corporation to, (i) indemnify and hold harmless each present and former director and officer of the Company, Company (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Company Indemnified Parties”), against any costs and all Damages incurred or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred suffered by any of the Company Indemnified Parties in connection with any claim, action, suit, proceeding Liabilities or investigation, actual or threatenedany Action, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of or pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under applicable Law and under the DGCL Company Certificate of Incorporation and its certificate of incorporation and bylaws Company Bylaws as in effect on the date hereof of this Agreement, to indemnify such Person Company Indemnified Parties and (and Parent shall also ii) advance expenses as incurred by any Company Indemnified Party in connection with any matters for which such Company Indemnified Party is entitled to indemnification from Parent pursuant to this Section 5.4(a) to the fullest extent permitted under applicable law provided Law or, if greater, under the Person Company Certificate of Incorporation and Company Bylaws; provided, however, that the Company Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately and finally determined by a court of competent jurisdiction and all rights of appeal have lapsed that such Person Company Indemnified Party is not entitled to indemnification under applicable Law, the DGCLCompany Certificate of Incorporation and Company Bylaws, and pursuant to this Section 5.4(a).
(cb) Prior to the Closing, Parent shall cause to be maintainedhave obtained and prepaid, for with the cost ***, a period of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time or policies (i.e., “tail coverage”, or the “D&O InsuranceTail”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided covering those persons who are currently covered by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ Company’s director’s and officers’ liability insurance policy (copies of which have been heretofore delivered by the Company to Parent and its agents and representatives) for an aggregate period of not less than *** with respect to claims arising from facts or events that occurred on or before the Closing Date, including with respect to the transactions contemplated by this Agreement, with coverage in an amount and scope at least as favorable as the Company’s existing coverage, and the Parent shall maintain, or shall cause the Surviving Corporation for itself to maintain such policy for a period of six (6) years following the Effective Time.
(c) Parent hereby agrees that can be obtained for it will not (i) cause or permit the remainder Surviving Corporation or any of its Subsidiaries to amend or modify the indemnification provisions in the organizational documents of the Surviving Corporation or any such period by paying Subsidiary (ii) amend or revoke any indemnification agreement between the Maximum PremiumSurviving Corporation or any of its Subsidiaries and any director or officer currently in effect, in each case, in any way that diminishes or adversely affects the indemnification or exculpation provisions provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premiumtherein or herein.
(d) In the event that Parent, the Surviving Corporation or any of their respective its successors or and assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger, merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving CorporationCompany, as the case may be, assume fulfill and comply with the indemnification and other obligations set forth in this Section 6.115.4.
(e) The terms and provisions of this Section 6.11 5.4 are intended to be in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with otherwise available to the Company Indemnified Parties by applicable Law, charter, bylaw or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs agreement, and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be operate for the benefit of, and shall be enforceable by, the Company Indemnified Parties and their respective heirs and representatives, each of the Indemnified Parties, their heirs and their representativeswhom is an intended third party beneficiary of this Section 5.4.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Company Merger Effective Time, Parent the Surviving Company agrees that it will indemnify and hold harmless each present and former director and officer of the CompanyCompany or any of its Subsidiaries (in each case, (when acting in such capacity) ), determined as of the Company Merger Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement penalties, claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters actually or allegedly existing or occurring at or prior to the Company Merger Effective Time, whether asserted or claimed prior to, at or after the Company Merger Effective Time, to the fullest extent that the Company would have been permitted under the DGCL Maryland law and its certificate of incorporation and or bylaws in effect on the date hereof of this Agreement to indemnify such Person (and Parent or the Surviving Company shall also advance expenses as incurred to the fullest extent permitted under applicable law Law; 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); and provided, further, that any determination required to be made with respect to whether an officer’s or director’s conduct complies with the standards set forth under Maryland law and the Company’s certificate of incorporation and bylaws shall be made by independent counsel selected by the Surviving Company.
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 6.11, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify the DGCLSurviving Company thereof, but the failure to so notify shall not relieve the Surviving Company of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the indemnifying party. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Company Merger Effective Time), (i) Parent or the Surviving Company shall have the right to assume the defense thereof and Parent and the Surviving Company shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Parent or the Surviving Company elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Parent or the Surviving Company and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that the Surviving Company shall be obligated pursuant to this paragraph (b) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, provided that the fewest number of counsels necessary to avoid conflicts of interest shall be used; (ii) the Indemnified Parties will cooperate in the defense of any such matter, and (iii) Parent and the Surviving Company shall not be liable for any settlement effected without their prior written consent, which consent shall not be unreasonably withheld; and provided, further, that Parent and the Surviving Company shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law.
(c) Prior to the Company Merger Effective Time, the Company shall, and, if the Company is unable to, Parent shall cause the Surviving Company as of the Company Merger Effective Time to be maintainedobtain and fully pay the premium for the non-cancellable, irrevocable extension of (i) the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of not less than at least six (6) years from and after the Company Merger Effective Time, and (ii) the Company’s current existing fiduciary liability insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Company Merger Effective Time, (iii) the Company’s existing insurance policy with respect to employment practices liability insurance for a claims reporting or discovery period of at least three (3) years from and after the Company Merger Effective Time, in each case from one or more insurance carriers with the same or better credit rating as the Company’s insurance carrier as of the date of this Agreement with respect to directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time and fiduciary liability insurance (the collectively, “D&O Insurance”) for all present with terms, conditions, retentions and former directors and officers limits of liability that are at least as favorable to the insureds 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 Subsidiary thereof, so long as of its Subsidiaries by reason of him or her serving in such capacity that existed or occurred at or prior to the aggregate premium therefor would not be Company Merger Effective Time (including in excess of Four Million Dollars ($4,000,000) (connection with this Agreement or the “Maximum Premium”transactions or actions contemplated by this Agreement); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expiresCompany and the Surviving Company for any reason fail to obtain such “tail” insurance policies as of the Company Merger Effective Time, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum PremiumSurviving Company shall, and Parent shall obtaincause the Surviving Company to, continue to maintain in lieu effect for a period of such D&O Insurance, at least six years from and after the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for Company Merger Effective Time the D&O Insurance in place as of the date of this Agreement with terms, conditions, retentions and limits of liability that are at least as favorable to the insureds as provided in the Company’s existing policies as of the date of this Agreement, or the Surviving Company shall, and Parent shall cause the Surviving Company to, use reasonable best efforts 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 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, pursuant to this Section 6.11(c) ), any premiums in the aggregate in excess of an amount equal to 300% of the annual premiums currently paid by the Company for such insurance policies; and provided, further, that if the aggregate annual premiums of such insurance coverage exceed such amount, the Company or the Surviving Company, as the case may be, shall in no event exceed obtain a policy with the Maximum Premiumgreatest coverage available for a cost not exceeding such amount.
(d) In the event Parent, If Parent or the Surviving Corporation Company or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Company shall assume all of the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties.
(f) The rights of the Indemnified Parties under this Section 6.11 shall be in addition to any rights such Indemnified Parties may have under the certificate of incorporation or bylaws of the Company or any of its Subsidiaries, or under any applicable Contract or Laws. All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Company Merger Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the certificate of incorporation, certificate of formation or bylaws of the Company or of any Subsidiary of the Company or any indemnification agreement between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Mergers or any other transactions contemplated by this Agreement and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(g) From and after the Company Merger Effective Time until the third (3rd) anniversary thereof, the organizational documents of the Surviving Company and its Subsidiaries shall contain provisions no less favorable with respect to any indemnification, advancement of expenses and exculpation rights of individuals who were, prior to the Company Merger Effective Time, directors, officers or employees of the Company, a Subsidiary of the Company or any of their heirs predecessor entities, than are presently set forth in the organizational documents of the Company and their representativesits applicable Subsidiary, and the organizational documents of the Surviving Company and its Subsidiaries shall not contain any provisions contradictory to such rights.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation From and bylaws of after the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope Acceptance Time, and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify each of Parent, the Company and the Surviving Corporation shall, jointly and severally, to the fullest extent permitted by Law, indemnify, defend and hold harmless each present and former director and officer of the Company, Company or any of the Company Subsidiaries (when acting in such capacitytheir capacity as such) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified PartiesPerson”), against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, settlements, fines, losses, claims, damages, liabilities or amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole arising out of, relating to or in part based on or arising in whole or in part out of connection with any matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person Time (a “Proceeding”) (and Parent and the Company or the Surviving Corporation, as applicable, shall also advance expenses as incurred to the fullest extent permitted under applicable law Law, provided that the Indemnified Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Person is not entitled to indemnification); provided that if, at any time prior to the sixth anniversary of the Effective Time, any Indemnified Person delivers to Parent and the Surviving Corporation a written notice asserting a claim for indemnification or advancement of expenses under this Section 6.04(a) in connection with a Proceeding, then the DGCLobligations of Parent, the Company and the Surviving Corporation set forth in this Section 6.04(a) shall survive the sixth anniversary of the Effective Time until such time as such Proceeding is fully and finally resolved. None of Parent, the Company and the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Proceeding (and in which indemnification or advancement of expenses could be sought by an Indemnified Person hereunder), unless such settlement, compromise or consent includes an unconditional release of the applicable Indemnified Person(s) from all liability arising out of such Proceeding or such Indemnified Person(s) otherwise consents thereto in writing.
(b) Parent and the Company agree that all rights to indemnification, advancement of expenses and exculpation now existing in favor of each Indemnified Person as provided in the Company Charter and Company Bylaws, or in the certificate or articles of incorporation, bylaws or similar documents of any Company Subsidiaries, in effect as of the date hereof, shall, with respect to matters occurring prior to the Effective Time, survive the Merger and continue in full force and effect after the Effective Time. Until the sixth anniversary of the Effective Time, the certificate of incorporation and bylaws of the Surviving Corporation and the certificate or articles of incorporation, bylaws or similar documents of its subsidiaries shall, with respect to matters occurring at or prior to the Effective Time, contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of the Indemnified Persons than are set forth in the Company Charter and Company Bylaws or in the certificate or articles of incorporation, bylaws or similar documents of the Company’s subsidiaries in effect as of the date of execution of this Agreement, and such provisions shall not be amended, repealed or otherwise modified prior to the sixth anniversary of the Effective Time in any manner that would materially adversely affect the rights thereunder, as of the Effective Time, of any Indemnified Person, with respect to matters occurring at or prior to the Effective Time; provided, however, that all rights to indemnification, advancement of expenses and exculpation in respect of any Proceeding pending or asserted or any claim made within such six-year period shall continue until the final disposition of such Proceeding or resolution of such claim. To the maximum extent permitted by Law, all such indemnification of Indemnified Persons with respect to matters occurring before the Effective Time shall be mandatory rather than permissive, and the Company or the Surviving Corporation and their subsidiaries, as the case may be, shall also advance expenses as provided hereinabove. Parent and the Company further agree that all rights to indemnification or advancement of expenses now existing in favor of Indemnified Persons in any indemnification agreement between such Indemnified Person and the Company or any Company Subsidiary, as the case may be, or under Law shall survive the Merger and continue in full force and effect in accordance with the terms of such agreement or Law.
(c) Parent shall or the Surviving Corporation shall (and Parent shall cause to be maintained, for a period of not less than six (6the Surviving Corporation to) years from the Effective Time, the Company’s current directors’ obtain and officers’ maintain directors and officers liability insurance policy policies for the Indemnified Persons with respect to the extent that it provides coverage for events matters occurring prior to the Effective Time (for a period of six years from the “D&O Insurance”) for all present Effective Time on terms with respect to coverage and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause amount no less favorable coverage to be provided under any policy maintained for the benefit than those of the directors and officers of applicable policies in effect on the date hereof; provided, however, that in no event shall Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated Surviving Corporation be obligated to expend in order to obtain or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability maintain insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c6.04(c) any amount per annum in excess of 300% of the aggregate premiums currently paid or payable by the Company in 2009 (on an annualized basis) for such purpose (the “cap”); and provided further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the cap, Parent or the Surviving Company shall in no event exceed only be required to obtain as much coverage as can be obtained by paying an annual premium equal to the Maximum Premiumcap. Parent or its affiliate may purchase a “tail” policy of such directors and officers liability insurance.
(d) In the event Parent, the Surviving Corporation (or any of their respective its subsidiaries) 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, merger or (ii) transfers or conveys all or substantially all any substantial portion of its properties and assets to any Personperson, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving CorporationCorporation (or its subsidiary, as the case may be, applicable) (or their respective successors or assigns) assume the obligations set forth in of the Surviving Corporation (or its subsidiary, as applicable) (or their respective successors or assigns) under this Section 6.11.
(e) 6.04. The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Surviving Corporation and Parent agrees to shall pay all costs and expenses (reasonable expenses, including reasonable fees and expenses of counsel) attorneys’ fees, that may be incurred by any Indemnified Party Person in successfully enforcing the indemnity or and other obligations under provided in this Section 6.116.04. For the period from the Acceptance Time through the Effective Time, the Company shall not, and Parent shall not permit the Company to, amend the provisions in the Company Charter and Company Bylaws providing for exculpation of director and officer liability and indemnification of and expense advancement for Indemnified Persons. The provisions of this Section 6.11 6.04 shall survive the consummation of the Merger and expressly are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified PartiesPersons. Notwithstanding anything to the contrary, their heirs it is agreed that the rights of an Indemnified Person under this Section 6.04 shall be in addition to, and their representativesnot a limitation of any other rights such Indemnified Person may have under the Company Charter, the Company Bylaws, any other indemnification arrangements, the DGCL or otherwise and nothing in this Section 6.04 shall have the effect of, or be construed as having the effect of, reducing the benefits to the Indemnified Persons under the Company Charter, the Company Bylaws, any other indemnification arrangements, the DGCL or otherwise with respect to matters occurring prior to the Effective Time.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, to the fullest extent that the Company would have been permitted under applicable Law and the Company’s Organizational Documents in effect as of the date of this Agreement, the Surviving Corporation shall, and Parent agrees that it will shall cause the Surviving Corporation to, indemnify and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), Parties against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with with, arising out of or otherwise related to any claim, action, suit, proceeding or investigation, actual or threatenedalleged Proceeding in connection with, whether civil, criminal, administrative or investigative (a “Claim”), in whole or in part based on or arising in whole or in part out of or otherwise related to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, based in whole or in part, or arising in whole or in part out of the fact that he or she is or was a director or officer of the Company or any of its Subsidiaries, including in connection with (i) the transactions contemplated by this Agreement and (ii) actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party. Parent or the Surviving Corporation shall advance all reasonable, documented out-of-pocket expenses as incurred in connection therewith (upon receipt from such Indemnified Party of a request therefor, accompanied by invoices or other relevant documentation) to the fullest extent that the Company would have been permitted under the DGCL and its certificate to advance such expenses as of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted of this Agreement under applicable law provided Law and the Company’s Organizational Documents; provided, that any Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification indemnification; and provided, further, that any determination required to be made with respect to whether an Indemnified Party’s conduct complies with the standards set forth under applicable Law and the DGCLCompany’s Organizational Documents in effect as of the date of this Agreement shall be made by independent legal counsel selected by the Surviving Corporation and acceptable to the Indemnified Party (such acceptance not to be unreasonably conditioned, withheld or delayed).
(cb) Parent shall cause Prior to be maintained, for a period of not less than six (6) years from the Effective Time, the Company shall and, if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay the premium for “tail” insurance policies for the extension of (i) the directors’ and officers’ liability coverage of the Company’s current existing directors’ and officers’ insurance policies, and (ii) the Company’s existing fiduciary liability insurance policies, in each case providing only for Side A coverage for Indemnified Parties where the existing policies also include Side B coverage for the Company for a claims reporting or discovery period of the Tail Period from one or more insurance carriers with the same or better credit rating as the Company’s insurance carrier as of the date of this Agreement with respect to directors’ and officers’ liability insurance policy and fiduciary liability insurance (collectively, “D&O Insurance”) with terms, conditions, retentions and limits of liability that are at least as favorable to the extent insureds 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 by this Agreement); provided, that it provides the Company shall give Parent a reasonable opportunity to participate in the selection of such “tail” insurance policy and the Company shall give reasonable and good faith consideration to any comments made by Parent with respect thereto. 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 the Tail Period the D&O Insurance in place as of the date of this Agreement with terms, conditions, retentions and limits of liability that are at least as favorable to the insureds as provided in the Company’s existing policies as of the date of this Agreement, or the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, purchase comparable D&O Insurance for the Tail Period with terms, conditions, retentions and limits of liability that are 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 annual premium of the D&O Insurance exceed during the Tail Period three-hundred percent (300%) of the last annual premium paid by the Company for such purpose; and provided further, that if the cost of such insurance coverage exceeds such amount, the Surviving Corporation shall obtain a policy with the greatest coverage available for events a cost not exceeding such amount.
(c) During the Tail Period, all rights to indemnification and exculpation from liabilities for acts or omissions occurring prior to the Effective Time (and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the “D&O Insurance”) for all present Organizational Documents of the Company and former directors its Subsidiaries or any indemnification agreement between such Indemnified Party and officers of the Company or any Subsidiary thereofof its Subsidiaries, so long in each case, as in effect on the aggregate premium therefor would date of this Agreement, shall not be amended, restated, amended and restated, repealed or otherwise modified in excess any manner that would adversely affect any right thereunder of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining any such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum PremiumIndemnified Party.
(d) In the event Parent, If Parent or the Surviving Corporation or any of their respective legal successors or permitted assigns (i) consolidates shall consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity Person of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the legal successors and permitted assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume all of the obligations set forth in this Section 6.117.10.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 7.10 are intended to be for the benefit of, and from and after the Effective Time shall be enforceable by, each of the Indemnified Parties, who shall be third-party beneficiaries of this Section 7.10.
(f) The rights of the Indemnified Parties under this Section 7.10 are in addition to any rights such Indemnified Parties may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable Contracts or Laws and nothing in this Agreement is intended to, shall be construed 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 heirs respective directors, officers or other employees (it being understood and their representativesagreed that the indemnification provided for in this Section 7.10 is not prior to or in substitution of any such claims under such policies).
Appears in 1 contract
Samples: Merger Agreement (Syntel Inc)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify shall, and shall cause the Surviving Corporation to, indemnify, defend and hold harmless each present and former director and officer of the CompanyCompany or any of its Subsidiaries, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any and all costs (including settlement costs) or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages damages, penalties or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), in whole or in part based on or arising in whole or in part out of including with respect to matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or based on the fact that such Indemnified Party is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another Person prior to the Effective Time, in each case, whether threatened, pending or completed and whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL and its certificate Laws of incorporation and bylaws the State of Delaware, any applicable indemnification agreement to which such Person is a party, the Company Certificate of Incorporation or Company Bylaws in effect on the date hereof of this Agreement to indemnify such Person (and Parent and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under applicable law Law; provided that the Person to whom expenses are advanced provides shall provide an undertaking to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification under the DGCLindemnification).
(c) . Parent shall, and shall cause to be maintainedthe Surviving Corporation to, ensure that the organizational documents of the Surviving Corporation and its Subsidiaries, shall, for a period of not less than six (6) years from and after the Effective Time, contain provisions no less favorable, in the aggregate, with respect to indemnification, advancement of expenses and exculpation of present and former directors, officers, employees and agents of the Company and its Subsidiaries than are presently set forth in the Company Certificate of Incorporation and Company Bylaws (or equivalent organizational and governing documents of any Subsidiary). Any right of indemnification of an Indemnified Party pursuant to this Section 6.11 shall not be amended, repealed or otherwise modified at any time in a manner that would adversely affect the rights of such Indemnified Party as provided herein.
(b) Prior to the Effective Time, the Company shall and, if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay 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 policy 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 the extent that it provides coverage for events matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the “D&O Insurance”) for all present and former directors and officers of transactions or actions contemplated hereby); provided, however that in no event shall the Company or any Subsidiary thereof, so long as the aggregate be required to expend for such policies an annual premium therefor would not be amount in excess of Four Million Dollars three-hundred percent ($4,000,000300%) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided annual premiums currently paid by the same insurerCompany for such insurance. If the existing D&O Insurance expiresCompany for any reason fails to obtain such “tail” insurance policies as of the Effective Time, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum PremiumSurviving Corporation shall, and Parent shall obtaincause the Surviving Corporation to, continue to maintain in lieu effect for a period of such D&O Insurance, at least six (6) years from and after the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for Effective Time the D&O Insurance pursuant to in place as of the date of this Section 6.11(c) Agreement with benefits and levels of coverage at least as favorable, in the aggregate, as provided in the Company’s existing policies as of the date of this Agreement, or the Surviving Corporation shall, and Parent shall cause the Surviving Corporation 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 exceed shall the Maximum PremiumCompany expend, or Parent or the Surviving Corporation be required to expend for such policies, an annual premium amount in excess of three-hundred percent (300%) of the annual premiums currently paid by the Company for such insurance; provided, further that if the premium for such insurance coverage exceeds such amount, the Surviving Corporation shall obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(dc) In the event If Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Person, then, then and in each such casecase as a condition thereto, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving CorporationCorporation (or their respective successors or assigns), as the case may beapplicable, shall cause such Person to assume (either by operation of law or by written instrument) all of the obligations set forth in this Section 6.11.
(ed) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives. The rights of each Indemnified Party under this Section 6.11 shall be in addition to any rights such individual may have under the Laws of the State of Delaware, any applicable indemnification agreement to which such Person is a party, the Company Certificate of Incorporation or the Company Bylaws, and Parent acknowledges and agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities now existing in favor of any Indemnified Party for actions or omissions occurring at or prior to the Effective Time shall continue in full force and effect in accordance with their terms.
(e) Neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any threatened or actual Proceeding 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 Proceeding or such Indemnified Party otherwise consents in writing (such consent not to be unreasonably withheld or delayed) to such settlement, compromise or consent.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to any directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.11 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Samples: Merger Agreement (Covetrus, Inc.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, each of Parent agrees that it will and the Surviving Company shall jointly and severally: (i) indemnify and hold harmless each present and former individual who served as a director and or officer of the Parent, the Company, (when acting in such capacity) determined as Merger Sub or any of their respective Subsidiaries prior to the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL).
(c) Parent shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu such Person’s capacity as such and not as stockholders of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries Subsidiaries) to the fullest extent required, authorized or under applicable permitted by Delaware law. Parent agrees to pay all costs , as now or hereafter in effect, in connection with any Claim and expenses any judgments, fines (including reasonable fees excise taxes), penalties and expenses amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of counselsuch judgments, fines, penalties or amounts paid in settlement) that may be incurred by resulting therefrom; and (ii) promptly pay on behalf of or, within thirty (30) days after any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended request for advancement, advance to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs to the fullest extent required, authorized or permitted by Delaware law, as now or hereafter in effect, any Expenses incurred in defending, serving as a witness with respect to or otherwise participating in any Claim in advance of the final disposition of such Claim, including payment on behalf of or advancement to the Indemnified Party of any Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to such indemnification and/or advancement, in each case without the requirement of any bond or other security, but in the case of advancement of Expenses upon receipt of an undertaking, to the extent required by applicable law, from such Indemnified Party to repay such advanced Expenses if it is determined by a court of competent jurisdiction in a final order that such Indemnified Party was not entitled to indemnification hereunder with respect to such Expenses. In the event any Claim is brought against any Indemnified Party, Parent and their representatives.the Surviving Company shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter, provided that neither Parent nor the Surviving Company shall settle, compromise or consent to the entry of any judgment in any Claim (in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent the claimant seeks any non-monetary relief (including any admission of liability or guilt) from such Indemnified Party. Notwithstanding the foregoing, an Indemnified Party shall be entitled to control the defense of any action, suit, investigation or proceeding with counsel of its own choosing reasonably acceptable to Parent and Parent and the Surviving Company shall cooperate in the defense thereof; provided, that Parent shall not be liable for the fees of more than one counsel for all Indemnified Parties, other than local counsel, unless a conflict of interest shall be caused thereby. The indemnification and advancement obligations of Parent and the Surviving Company pursuant to this Section 7.9 shall extend to acts or omissions occurring at or before the Effective Time and any Claim relating thereto (including, but not limited to, any acts or omissions occurring in connection with the approval of this Agreement by the Company Board and the Company’s stockholders and the consummation of the transactions contemplated hereby and any Claim relating -63-
Appears in 1 contract
Samples: Merger Agreement (Glowpoint, Inc.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent ING agrees that it will indemnify and hold harmless each present and former director and officer of the Company, Company (when acting in such capacity) ), determined as of immediately prior to the Effective Time (each, an Indemnified Party and, collectively, the “"Indemnified Parties”"), against any costs or expenses (including reasonable attorneys’ fees and expenses' fees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “"Costs”") incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL Delaware law and its certificate of incorporation and bylaws or by-laws or pursuant to other agreements in effect on the date hereof to indemnify such Person (and Parent ING shall also advance expenses as incurred to the fullest extent permitted under applicable law law; provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification); and provided further that any determination required to be made with respect to whether an officer's or director's conduct complies with the standards set forth under Delaware law and the Company's certificate of incorporation and by-laws shall be made by independent counsel selected by the Surviving Corporation.
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 6.11, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify ING thereof. In the DGCLevent of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) ING or the Surviving Corporation shall have the right to assume the defense thereof and ING 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 ING or the Surviving Corporation elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between ING or the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and ING or the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that ING shall be obligated pursuant to this paragraph (b) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction, (ii) the Indemnified Parties will cooperate in the defense of any such matter and (iii) ING shall not be liable for any settlement effected without its prior written consent; and provided, further, that ING shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law.
(c) Parent ING shall cause the Surviving Corporation to be maintained, either (i) maintain the Company's existing officers' and directors' liability insurance for a period of not less than six (6) years from after the Effective Time, Time or (ii) maintain a run-off or tail policy or endorsement with respect to covering claims asserted within six years after the Company’s current directors’ and officers’ liability insurance policy to the extent Effective Time arising from facts or events that it provides coverage for events occurring prior to occurred at or before the Effective Time (the “either, "D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof"), in each case so long as the aggregate annual premium therefor would is not be in excess of Four Million Dollars ($4,000,000) 175% of the last annual premium paid prior to the date hereof (the “Maximum "Current Premium”"); provided provided, however, that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If if the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of cancelled during such D&O Insurancesix-year period, the maximum directors’ and officers’ liability insurance coverage that Surviving Corporation will use its reasonable efforts to obtain as much D&O Insurance as can be obtained for the remainder of such period by paying for a premium not in excess (on an annualized basis) of 175% of the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Current Premium.
(d) In the event Parent, If the Surviving Corporation or any of their respective its successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume all of the obligations set forth in this Section 6.11Section.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for For a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will shall, and shall cause the Surviving Corporation to, indemnify and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Timeharmless, to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person applicable Law (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law Law, 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), each present and former director and officer of the Company and its Subsidiaries and each individual who was serving at the request of the Company or its Subsidiaries as a director, officer, member, trustee or fiduciary of any other corporation, partnership or joint venture, trust, employee benefit plan or other enterprise (collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, Action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or related to (x) their service as such or (y) services performed by such Indemnified Parties at the request of the Company or its Subsidiaries, in each case at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including (i) the Merger and any other transactions contemplated by this Agreement and (ii) actions to enforce this Section 6.11 or any other indemnification under or advancement right of any Indemnified Party.
(b) Parent and Merger Sub agree that all rights to exculpation or indemnification for acts or omissions occurring prior to the DGCL)Effective Time existing as of the date of this Agreement in favor of the Indemnified Parties or any of their predecessors and the heirs, executors, trustees, fiduciaries and administrators of such Indemnified Parties, as provided in the Company’s or each of its Subsidiaries’ respective certificates of incorporation or bylaws (or comparable organizational or governing documents) in effect on the date hereof or in any Contract set forth on Section 6.11(b) of the Company Disclosure Schedule, shall survive the Merger and the transactions contemplated by this Agreement and shall continue in full force and effect in accordance with their terms. After the Effective Time, Parent and the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) fulfill and honor such obligations to the maximum extent that the Company or applicable Subsidiary would have been permitted to fulfill and honor them by applicable Law. In addition, for six (6) years following the Effective Time, Parent shall and shall cause the Surviving Corporation to cause the certificate of incorporation and bylaws of the Surviving Corporation to contain provisions with respect to indemnification and exculpation that are at least as favorable as the indemnification and exculpation provisions contained in the certificate of incorporation and bylaws of the Company in effect on the date hereof, and such provisions shall not be amended, repealed or otherwise modified for six (6) years following the Effective Time in any manner which would adversely affect the rights of the Indemnified Parties, except as required by applicable Law.
(c) Prior to the Effective Time, the Company shall, and if the Company is unable to, Parent shall cause to be maintainedthe Surviving Corporation as of the Effective Time to, obtain and fully pay the premium for “tail” insurance policies for the extension of (i) the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies and (ii) the Company’s existing fiduciary liability insurance policies, in each case, for a claims reporting or discovery period of not less than at least six (6) years from and after the Effective Time, Time (the “Tail Period”) from one or more insurance carriers with the same or better credit rating as the Company’s current insurance carrier as of the date of this Agreement (or, if no such policies are available from insurance carriers with such credit rating, from insurance carriers with the next-highest credit rating then capable of providing such policies) with respect to directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time and fiduciary liability insurance (the collectively, “D&O Insurance”) for all present with terms, conditions, retentions and former directors and officers limits of liability that are at least as favorable to the Company insureds 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 Subsidiary thereof, so long as the aggregate premium therefor would not be in excess matter claimed against a director or officer of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries by reason of his or under applicable law. Parent agrees her serving in such capacity that existed or occurred at or prior to pay all costs and expenses the Effective Time (including reasonable fees in connection with this Agreement or the transactions or actions contemplated hereby); provided, that in no event shall Parent or the Surviving Corporation be required to expend for such “tail” insurance policy an aggregate amount in excess of 300% of the last annual premium paid by the Company prior to the date hereof (such 300% amount, the “Cap”); provided, further, that if the amount of such “tail” insurance policy exceeds the Cap, the Surviving Corporation shall obtain a policy with the greatest coverage available for the Cap. If the Company and expenses the Surviving Corporation for any reason fail to obtain such “tail” insurance policies as of counsel) that may be incurred by any Indemnified Party the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in successfully enforcing effect for the indemnity or other obligations under this Section 6.11. The provisions Tail Period the D&O Insurance in place as of the date of this Section 6.11 Agreement with terms, conditions, retentions and limits of liability that are at least as favorable to the insureds as provided in the Company’s existing policies as of the date of this Agreement, or the Surviving Corporation shall, and Parent shall survive cause the Merger and are intended to be Surviving Corporation to, purchase comparable D&O Insurance for the benefit ofTail Period with terms, conditions, retentions and shall be enforceable by, each limits of liability that are at least as favorable to the insureds as provided in the Company’s existing policies as of the Indemnified Partiesdate of this Agreement; provided that in no event shall Parent or the Surviving Corporation be required to expend for all such policies pursuant to this sentence an annual premium amount in excess of the Cap for such insurance; and provided, their heirs and their representativesfurther, that if the annual premiums of such insurance coverage exceeds the Cap, the Surviving Corporation shall obtain a policy with the greatest coverage available for the Cap.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, to the fullest extent permitted under applicable Law, each of Parent agrees that it will indemnify and the Surviving Entity shall jointly and severally (i) indemnify, defend and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of the Effective Time Time) director and officer of any of GP LLC, the Partnership Parties or any of their respective Subsidiaries, in each case, when acting in such capacity (eachincluding the heirs, an Indemnified Party and, collectivelyexecutors and administrators of any such director or officer, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, penalties, sanctions, losses, amounts paid in settlement claims, damages or liabilities incurred and amounts paid in settlement (collectivelyincluding all interest, “Costs”) incurred assessments and other charges paid or payable in connection with or in respect of any claimthereof) in connection with, action, suit, proceeding arising out of or investigation, otherwise related to any acts or omissions or actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)threatened Proceeding, in whole or each case in part based on or connection with, arising in whole or in part out of or otherwise related to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including in connection with (A) the Transactions and (B) actions to the fullest extent that the Company would have been permitted under the DGCL enforce this provision or any other indemnification or advancement right of any Indemnified Party and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also ii) advance expenses as incurred in each case described in clause (i) to the fullest extent permitted under applicable law Law; provided the that any Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by a final and non-appealable judgment entered by a court of competent jurisdiction that such Person is not entitled to indemnification indemnification.
(b) The Parent shall maintain in effect, or cause to be maintained in effect, (i) the insurance liability coverage of the existing directors’ and officers’ insurance policies for directors and officers of GP LLC and (ii) the Partnership’s existing fiduciary liability insurance policies (collectively, the “D&O Insurance”) in place as of the date of this Agreement, in each case, for a claims reporting or discovery period of six years from and after the Effective Time (the “Tail Period”), with terms, conditions and limits of liability that are at least as favorable to the insureds as provided in the existing policies providing such coverage as of the date of this Agreement; provided, however, that in no event during the Tail Period shall Parent be required to expend more on the annual cost of the D&O Insurance than an amount per year equal to 300 percent of the current annual premiums charged to the Partnership by Parent for such insurance; and provided, further, that if the cost of such insurance coverage exceeds such amount, the Surviving Entity shall have the option to obtain a policy with the greatest coverage available for a cost not exceeding such amount. If the Parent in its sole discretion elects, then, in lieu of the obligations of the Surviving Entity under this Section 8.8(b), Parent may, but shall be under no obligation to, prior to the DGCLEffective Time, obtain and fully pay the premium for “tail” insurance policies for the extension of the D&O Insurance for the Tail Period with respect to matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the Transactions).
(c) Any Indemnified Party wishing to claim indemnification under this Section 8.8, upon learning of any such Proceeding, shall promptly notify Parent thereof in writing, but the failure to so notify shall cause not relieve Parent or the Surviving Entity of any liability it may have to be maintainedsuch Indemnified Party, for a period of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy except to the extent such failure materially prejudices the indemnifying party. In the event of any Proceeding: (i) Parent or the Surviving Entity shall have the right to assume the defense thereof (it being understood that it provides coverage by electing to assume the defense thereof, neither Parent nor the Surviving Entity will be deemed to have waived any right to object to the Indemnified Party’s entitlement to indemnification hereunder with respect thereto or assumed any liability with respect thereto), except that if Parent or the Surviving Entity elects not to assume such defense or legal counsel or the Indemnified Party advises that there are issues which raise conflicts of interest between Parent or the Surviving Entity and the Indemnified Party, the Indemnified Party may retain legal counsel satisfactory to them, and Parent or the Surviving Entity shall pay all reasonable and documented fees and expenses of such legal counsel for events the Indemnified Party promptly as statements therefor are received; provided, however, that Parent and the Surviving Entity shall be obligated pursuant to this Section 8.8(c) to pay for only one firm of legal counsel for all Indemnified Parties with respect to any Proceeding in any jurisdiction unless the use of one legal counsel for such Indemnified Parties would present such legal counsel with a conflict of interest (provided that the fewest number of legal counsels necessary to avoid conflicts of interest shall be used); (ii) the Indemnified Parties shall cooperate in the defense of any such matter if Parent or the Surviving Entity elects to assume such defense, and Parent and the Surviving Entity shall cooperate in the defense of any such matter if Parent or the Surviving Entity elects not to assume such defense; (iii) the Indemnified Parties shall not be liable for any settlement effected without their prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) if Parent or the Surviving Entity elects to assume such defense and Parent and the Surviving Entity shall not be liable for any settlement effected without their prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) if Parent or the Surviving Entity elects not to assume such defense; and (iv) all rights to indemnification in respect of any such Proceedings shall continue until final disposition of all such Proceedings.
(d) During the Tail Period, the Parent shall honor (and shall cause GP LLC, the General Partner and the Surviving Entity to honor) all rights to indemnification, elimination of liability and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights to advancement of expenses relating thereto as in effect on the “D&O Insurance”) for all present date of this Agreement in favor of any Indemnified Party as provided in the Organizational Documents of GP LLC, the General Partner, the Partnership and former directors and officers of the Company their respective Subsidiaries or any Subsidiary thereofindemnification agreement between such Indemnified Party and GP LLC, so long the General Partner, the Partnership or any of their respective Subsidiaries, in each case, as in effect on the aggregate premium therefor would date of this Agreement, and all of such rights shall survive the Transactions unchanged and shall not be amended, restated, repealed or otherwise modified in excess any manner that would adversely affect any right thereunder of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining any such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum PremiumIndemnified Party.
(de) In the event If Parent, GP LLC, the General Partner or the Surviving Corporation Entity or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity Person of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent Parent, GP LLC, the General Partner or the Surviving CorporationEntity, as the case may beapplicable, shall assume all of the obligations set forth in this Section 6.118.8.
(ef) The provisions rights of the Indemnified Parties under this Section 6.11 8.8 are in addition to the any rights that an such Indemnified Party Parties may have under the certificate Organizational Documents of incorporationGP LLC, bylaws or agreements of or with the Company General Partner, the Partnership or any of its Subsidiaries their respective Subsidiaries, or under any applicable law. Parent agrees Contracts or Laws, and nothing in this Agreement is intended to, shall be construed to pay all costs or shall release, waive or impair any rights to directors’ and expenses (including reasonable fees and expenses officers’ insurance claims under any policy that is or has been in existence with respect to GP LLC, the General Partner, the Partnership or any of counsel) that may be incurred by their respective Subsidiaries for any Indemnified Party in successfully enforcing the indemnity of their respective directors, officers or other obligations under this employees.
(g) This Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are 8.8 is intended to be for the benefit of, and from and after the Effective Time shall be enforceable by, each of the Indemnified Parties, their heirs and their representativeswho shall be third-party beneficiaries of this Section 8.8. Any right of an Indemnified Party pursuant to this Section 8.8 shall not be amended, repealed, terminated or otherwise modified at any time in a manner that would adversely affect the rights of such Indemnified Party as provided herein.
Appears in 1 contract
Samples: Merger Agreement (Enbridge Inc)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this AgreementParent agrees that, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From from and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer of the Company, Company (when acting in such capacity) ), determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL Delaware law and its certificate of incorporation and bylaws or by-laws or pursuant to other agreements in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law law, provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification); and provided further, that any determination required to be made with respect to whether an officer’s or director’s conduct complies with the standards set forth under Delaware law and the Company’s certificate of incorporation and by-laws shall be made by independent counsel selected by the Surviving Entity.
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 6.13, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof. In the DGCLevent of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) Parent or the Surviving Entity shall have the right to assume the LA_LAN01:179306.23 defense thereof and Parent 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, (ii) the Indemnified Parties will cooperate in the defense of any such matter, and (iii) Parent shall not be liable for any settlement effected without its prior written consent; and provided further, that Parent shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law.
(c) Parent The Surviving Entity shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, maintain the Company’s current directorsexisting officers’ and officersdirectors’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers a period of six years after the Company or any Subsidiary thereof, Effective Time so long as the aggregate annual premium therefor would (on an annualized basis) is not be in excess of Four Million Dollars ($4,000,000) 2.0 times the last annual premium paid prior to the date hereof (the “Maximum Current Premium”); provided provided, however, that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If if the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of cancelled during such D&O Insurancesix-year period, the maximum directors’ and officers’ liability insurance coverage that Surviving Entity will use its reasonable best efforts to obtain as much D&O Insurance as can be obtained for the remainder of such period by paying for a premium not in excess (on an annualized basis) of 2.0 times the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Current Premium.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 6.13 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will shall cause the Surviving Corporation to (i) indemnify and hold harmless each present and former director and officer of the Company, each Acquired Company (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Company Indemnified Parties”), against any costs and all Damages incurred or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred suffered by any of the Company Indemnified Parties in connection with any claim, action, suit, proceeding Liabilities or investigation, actual or threatenedany Action, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of or pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the relevant Acquired Company would have been permitted under applicable Law and under the DGCL Company Certificate of Incorporation and its certificate Company Bylaws (or equivalent organizational documents of incorporation and bylaws the relevant Acquired Company), as the case may be, in each case as in effect on the date hereof of this Agreement (but in each case, subject to the limitations on the Surviving Corporation’s ability to indemnify its directors and officers under Section 145 of the DGCL), to indemnify such Person Company Indemnified Parties and (and Parent shall also ii) advance reasonable expenses of counsel as incurred by any Company Indemnified Party in connection with any matters for which such Company Indemnified Party is entitled to indemnification from Parent pursuant to this Section 6.7(a) to the fullest extent permitted under applicable law provided Law or, if greater, under the Person Company Certificate of Incorporation and Company Bylaws (or equivalent organizational documents of the relevant Acquired Company), in each case, as in effect on the date of this Agreement; provided, however, that the Company Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately and finally determined by a court of competent jurisdiction and all rights of appeal have lapsed that such Person Company Indemnified Party is not entitled to indemnification under applicable Law, the DGCLCompany Certificate of Incorporation and Company Bylaws (or equivalent organizational documents of the relevant Acquired Company), and pursuant to this Section 6.7(a); and provided further that Parent and the Surviving Corporation shall not be obligated to pay expenses of more than one counsel for all Company Indemnified Parties in any single Action unless a conflict of interest precludes the effective representation of more than one Company Indemnified Party with respect to such Action.
(cb) Parent At or prior to the Effective Time, the Company shall cause to be maintainedpurchase a prepaid directors’ and officers’ liability insurance policy or policies (i.e., “tail coverage”), which policy or policies shall cover those persons who are currently covered by the Company’s directors’ and officers’ liability insurance policy for a an aggregate period of not less than six (6) years from the Effective TimeTime with respect to claims arising from facts or events that occurred on or before the Closing Date, including with respect to the transactions contemplated by this Agreement, the Company’s current directors’ and officers’ liability insurance policy to the extent that it provides coverage premium for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the which shall be treated as a Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum PremiumTransaction Expense.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(ec) The terms and provisions of this Section 6.11 6.7 are intended to be in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with otherwise available to the Company Indemnified Parties by applicable Law, charter, bylaw or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs agreement, and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be operate for the benefit of, and shall be enforceable by, the Company Indemnified Parties and their respective heirs and representatives, each of the Indemnified Parties, their heirs and their representativeswhom is an intended third party beneficiary of this Section 6.7.
Appears in 1 contract
Samples: Merger Agreement (Shire PLC)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation From and bylaws of after the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope Acceptance Time, and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify each of Parent, the Company and the Surviving Corporation shall, to the fullest extent permitted by Law, indemnify, defend and hold harmless each present and former director and officer of the Company, Company or any of the Company Subsidiaries (when acting in such capacitytheir capacity as such) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified PartiesPerson”), against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, settlements, fines, losses, claims, damages, liabilities or amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole arising out of, relating to or in part based on or arising in whole or in part out of connection with any matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective TimeTime (a “Proceeding”) (and Parent, to the fullest extent that the Company would have been permitted under or the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent Surviving Corporation, as applicable, shall also advance expenses as incurred to the fullest extent permitted under applicable law Law, provided that the Indemnified Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Person is not entitled to indemnification indemnification) in all such cases to the same extent that such Indemnified Persons are indemnified or have the right to advancement of expenses pursuant to the Company Charter or the Company Bylaws or similar documents of any Company Subsidiary, in each case, in effect as of the date of this Agreement or as expressly provided in Section 6.04(b) (assuming for these purposes that Parent was obligated to indemnify or advance expenses under the DGCLCompany Charter or the Company Bylaws to the same extent that the Company is so obligated); provided that if, at any time prior to the sixth anniversary of the Effective Time, any Indemnified Person delivers to the Surviving Corporation a written notice asserting a claim for indemnification or advancement of expenses under this Section 6.04(a) in connection with a Proceeding, then the obligations of Parent, the Company and the Surviving Corporation set forth in this Section 6.04(a) shall survive the sixth anniversary of the Effective Time until such time as such Proceeding is fully and finally resolved. None of Parent, the Company and the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Proceeding (and in which indemnification or advancement of expenses could be sought by an Indemnified Person hereunder), unless such settlement, compromise or consent includes an unconditional release of the applicable Indemnified Person(s) from all liability arising out of such Proceeding or such Indemnified Person(s) otherwise consents thereto in writing.
(b) Parent and the Company agree that, during the period commencing at the Acceptance Time and ending on the sixth anniversary of the Effective Time, all rights to indemnification, advancement of expenses and exculpation now existing in favor of each Indemnified Person as provided in the Company Charter and Company Bylaws, or in the certificate or articles of incorporation, bylaws, or similar documents of any Company Subsidiary, in effect as of the date of this Agreement, shall, with respect to matters occurring prior to the Effective Time, survive the Merger and continue in full force and effect after the Effective Time. During the period commencing at the Acceptance Time and ending on the sixth anniversary of the Effective Time, the certificate of incorporation and bylaws of the Surviving Corporation and the certificate or articles of incorporation, bylaws or similar documents of the Company Subsidiaries shall, with respect to matters occurring at or prior to the Effective Time, contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of the Indemnified Persons than are set forth in the Company Charter and Company Bylaws or in the certificate or articles of incorporation, bylaws or similar documents of the Company Subsidiaries in effect as of the date of this Agreement, and such provisions shall not be amended, repealed or otherwise modified after the Acceptance Time and prior to the sixth anniversary of the Effective Time in any manner that would materially adversely affect the rights thereunder, as of the Effective Time, of any Indemnified Person, with respect to matters occurring at or prior to the Effective Time; provided, however, that all rights to indemnification, advancement of expenses and exculpation in respect of any Proceeding pending or asserted or any claim made within such six-year period shall continue until the final disposition of such Proceeding or resolution of such claim. To the maximum extent permitted by applicable Law, all such indemnification of Indemnified Persons with respect to matters occurring before the Effective Time shall be mandatory rather than permissive, and the Company or the Surviving Corporation and their Subsidiaries, as the case may be, shall also advance expenses as provided hereinabove. Parent and the Company further agree that all rights to indemnification or advancement of expenses now existing in favor of Indemnified Persons in any indemnification agreement between such Indemnified Person and the Company or any Company Subsidiary, as the case may be, shall survive the Merger and continue in full force and effect in accordance with the terms of such agreement.
(c) Parent shall cause to be maintained, for a During the period commencing at the Acceptance Time and ending on the sixth anniversary of not less than six (6) years from the Effective Time, Parent or the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) obtain and maintain directors’ and officers’ liability insurance for the Indemnified Persons with respect to matters occurring prior to the Effective Time on terms with respect to coverage and amount no less favorable in the aggregate than those of the directors’ and officers’ liability insurance policy obtained by the Company in effect on the date of this Agreement; provided, however, that in no event shall Parent and the Surviving Corporation be obligated to expend in order to obtain or maintain insurance coverage pursuant to this Section 6.04(c) any amount per annum in excess of 300% of the aggregate premiums currently paid or payable by the Company in 2011 (on an annualized basis) for such purpose (the “Cap”); and provided further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the Cap, Parent or the Surviving Corporation shall only be required to obtain as much coverage as can be obtained by paying an annual premium equal to the Cap. Prior to the Effective Time, Parent may, and, if requested by Parent, the Company shall, purchase a six-year “tail” prepaid policy on the Company’s current directors’ and officers’ liability insurance insurance. In the event that such a “tail” policy to the extent that it provides coverage for events occurring is purchased prior to the Effective Time Time, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) maintain such “D&O Insurance”tail” policy in full force and effect and Parent and the Surviving Corporation shall have no obligations under the first sentence of this Section 6.04(c) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be such “tail” policy is in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors full force and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premiumeffect.
(d) In the event Parent, the Surviving Corporation or any of their respective 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, merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation (and their respective successors and assigns) assume the obligations set forth in of the Surviving Corporation (or its successors or assigns) under this Section 6.116.04.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Surviving Corporation and Parent agrees to shall pay all costs and expenses (reasonable expenses, including reasonable fees and expenses of counsel) attorneys’ fees, that may be incurred by any Indemnified Party Person in successfully enforcing the indemnity or and other obligations under provided in this Section 6.116.04 under circumstances in which such Indemnified Person is entitled to the indemnity and other obligations provided in this Section 6.04. The provisions of this Section 6.11 6.04 shall survive the consummation of the Merger and expressly are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified PartiesPersons. Notwithstanding anything in this Agreement to the contrary, their heirs it is agreed that the rights of an Indemnified Person under this Section 6.04 shall be in addition to, and their representativesnot a limitation of any other rights such Indemnified Person may have under the Company Charter, the Company Bylaws, any other indemnification arrangements, the DGCL or otherwise and nothing in this Section 6.04 shall have the effect of, or be construed as having the effect of, reducing the benefits to the Indemnified Persons under the Company Charter, the Company Bylaws, any other indemnification arrangements, the DGCL or otherwise with respect to matters occurring prior to the Effective Time.
Appears in 1 contract
Samples: Merger Agreement (Cna Surety Corp)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective TimeTime for a period of six years, Parent agrees that it will indemnify and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “"Indemnified Parties”"), against any costs or expenses (including reasonable attorneys’ ' fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “"Costs”") incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL Delaware law and its certificate of incorporation and or bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides (i) a written affirmation of his or her good faith belief that the standard of conduct necessary for indemnification has been met, and (ii) an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCLindemnification).
(cb) Parent shall cause to be maintained, for a period of not less than six (6) years one year from the Effective Time, the Company’s 's current directors’ ' and officers’ ' liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “"D&O Insurance”") for all present and former directors and officers of the Company or any Subsidiary subsidiary thereof, so long as the aggregate annual premium therefor would not be in excess of Four Million Dollars 150% of the last annual premium paid for the D&O Insurance prior to the date of this Agreement ($4,000,000) (150% of such premium, the “"Maximum Premium”"); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate annual premium would exceed the Maximum PremiumPremium during such period, Parent shall obtain, in lieu of such D&O Insurance, the maximum such comparable directors’ ' and officers’ ' liability insurance coverage that as can be obtained for the remainder of such period by paying for an annualized premium not in excess of the Maximum Premium, provided that aggregate premiums payable by Parent for Premium and on terms and conditions no less advantageous than the existing D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum PremiumInsurance.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(ec) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11Section. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Samples: Merger Agreement (Capital Re Corp)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent Praxair agrees that it will indemnify and hold harmless each present and former director director, officer and officer employee of the Company, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified "Indemni- fied Parties”"), against any costs or expenses (including reasonable attorneys’ fees and expensesattor- neys' fees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “"Costs”") incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under Delaware law and the DGCL and its certificate of incorporation and bylaws Company Charter or the Company's by- laws in effect on the date hereof to indemnify such Person (and Parent Praxair shall also advance expenses as incurred to the fullest extent permitted under applicable law provided law; 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 under the DGCLindemnification).
(c) Parent shall cause ; and provided, further, that, any 35 determination required to be maintainedmade with respect to whether an officer's or director's conduct complies with the standards set forth under Delaware law and the Company Charter and the Company's by-laws shall be made by counsel selected by the Surviving Corporation. Purchaser agrees that all rights to indemnification in favor of any present or former employee, agent, director or officer of the Company and its subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and the Company or any of its subsidiaries, or otherwise in effect on the date hereof shall survive the Merger and shall continue in full force and effect for a period of not less than six (6) five years from the Effective Time; provided that in the event any claim or claims are asserted or made within such five-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims.
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 7.9, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Praxair thereof. An Indemnified Party may select counsel to represent him or her in connection with any of the foregoing, which counsel shall be reasonably acceptable to Purchaser, and Purchaser and the Company will cooperate in the defense of any such matter; provided, however, that neither Purchaser nor the Company shall be liable for any settlement effected without its written consent and provided, further, that neither Purchaser nor the Company shall be obligated to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single matter except to the extent that, in the opinion of counsel for the Indemnified Parties, two or more of such Indemnified Parties have conflicting interests in the outcome of such matter. Praxair shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law.
(c) Praxair agrees that it shall use all reasonable efforts to maintain the Company’s current 's existing officers, and directors’ and officers’ , liability insurance policy and employee benefit plan fiduciary liability insurance ("D&0 Insurance") for a period of not less than five years from and after the Effective Time; provided, (i) that Praxair may substitute therefor policies of substantially similar coverage and amounts containing terms no less advantageous 36 to the extent that it provides coverage for events occurring prior to the Effective Time Indemnified Parties and (the “D&O Insurance”ii) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If if the existing D&O Insurance expiresexpires or is canceled during such period, is terminated or canceled by Praxair will use reasonable efforts to obtain substantially similar D&O Insurance to the insurer or if extent available; provided, further, that, notwithstanding clauses (i) and (ii) of this subsection 7.9(c), in the event that the aggregate annual premiums for D&O Insurance at any time during such five year period shall exceed 175% of the per annum rate of premium would exceed currently paid (the Maximum Premium, Parent shall obtain, in lieu of "Base Rate") by Company and its Subsidiaries for such D&O InsuranceInsurance on the date of this Agreement, then Praxair shall only be obligated to provide the maximum directors’ and officers’ liability insurance coverage that can shall then be obtained for available at an annual premium equal to 175% of the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum PremiumBase Rate.
(d) In the event Parent, If the Surviving Corporation or any of their respective its successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, thencorporation or other entity, then and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume all of the obligations set forth in the last two sentences of Section 7.7(c) and this Section 6.117.9.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 7.9 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation From and bylaws of after the Effective Time, the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable shall, to the Indemnified Parties (as defined below) as set forth in fullest extent permitted by applicable Law, indemnify, defend and hold harmless each person who is now, or has been at any time prior to the certificate of incorporation and bylaws date hereof, or who becomes prior to the Effective Time, a director or officer of the Company on (each an "Indemnified Party" and, collectively, the date of this Agreement"Indemnified Parties") against all losses, which provisions shall not be amendedexpenses (including reasonable attorneys' fees and expenses), repealed claims, damages or otherwise modified for a period of six (6) years after liabilities or, subject to the Effective Time in any manner that would adversely affect the rights thereunder proviso of the Indemnified Parties under the certificate of incorporation or bylaws of the Company next succeeding sentence, amounts paid in respect settlement, arising out of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective TimeTime that are in whole or in part based on, or arising out of the fact that such person is or was a director or officer of the Company or any of its subsidiaries, including, without limitation, losses, expenses, claims, damages or liabilities based on or arising out of or pertaining to the fullest extent transactions contemplated by this Agreement except, in the case of directors who are Affiliated with MVE Investors, LLC or the members thereof, for Misallocation Claims (as defined in Section 9.1), which shall be handled in accordance with the provisions of Article IX. In the event of any such loss, expense, claim, damage or liability (whether or not arising before the Effective Time) other than, with respect to directors who are Affiliated with MVE Investors, any loss, expense, claim, damage or liability based on or arising out of any Misallocation Claim, (i) 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 after statements therefor are received and otherwise advance to such Indemnified Party upon request reimbursement of documented expenses reasonably incurred, provided, however, that any such reimbursement shall be conditioned upon receiving an agreement promptly to return such amounts to the Company would have been permitted Surviving Corporation if a court of competent jurisdiction ultimately should determine that indemnification of such person is prohibited by applicable Law, (ii) the Surviving Corporation will cooperate in the defense of any such matter and (iii) any determination required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL and its the Surviving Corporation's certificate of incorporation or bylaws shall be made by independent counsel mutually acceptable to the Surviving Corporation and bylaws the Indemnified Party.
(b) For a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect on the date hereof policies of directors' and officers' liability insurance maintained by the Company (or a policy providing substantially similar coverage) for the benefit of those persons who are covered by such policies at the Effective Time (with respect to indemnify such Person (and Parent shall also advance expenses as incurred matters occurring prior to the fullest Effective Time), to the extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is liability insurance can be maintained annually at a total cost to the Surviving Corporation not entitled greater than $200,000; provided that if such insurance cannot be so maintained or obtained at such cost, the Surviving Corporation shall maintain or obtain as much of such insurance as can be so maintained or obtained at a cost equal to indemnification under the DGCL)$200,000.
(c) Parent shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event Parent, the Surviving Corporation or any of their respective its successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of or such consolidation or merger, merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, then and in each either such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume the obligations set forth for in this Section 6.116.4.
(d) To the fullest extent permitted by Law, from and after the Effective Time, all rights to indemnification now existing in favor of the directors and officers of the Company with respect to their activities as such prior to the Effective Time (other than indemnification of directors Affiliated with MVE Investors with respect to Misallocation Claims), as provided in the Company's certificate of incorporation or bylaws, in effect on the date thereof or otherwise in effect on the date hereof, shall survive the Merger and shall continue in full force and effect for a period of not less than six years from the Effective Time, provided, however, that any such reimbursement shall be conditioned upon receiving an agreement promptly to return such amounts to the Surviving Corporation if a court of competent jurisdiction ultimately should determine that indemnification of such person is prohibited by applicable Law.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 6.4 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified PartiesParty, their his or her heirs and their his or her representatives. The Surviving Corporation shall pay for all costs and fees (including reasonable attorneys' fees and expenses) incurred by any Indemnified Party in connection with such Indemnified Party enforcing his or her rights under this Section 6.4 in the event a court of competent jurisdiction determines that the Surviving Corporation is responsible for indemnifying such Indemnified Party hereunder.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent the Acquiror agrees that it will indemnify and hold harmless each present and former director and officer of the CompanyCompany or any of its Subsidiaries, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “"Indemnified Parties”"), against any and all costs or expenses (including reasonable attorneys’ fees and expenses' fees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “"Costs”") incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective TimeTime or arising out of any conduct of Acquiror or any of its Affiliates that imposes, results in or gives rise to an "unfair burden" on any Registered Funds for purposes of Section 15(f) of the Investment Company Act, whether asserted or claimed prior to, at or after the Effective TimeTime (including with respect to the transactions contemplated by this Agreement), to the fullest extent that the Company or such Subsidiary would have been permitted under the DGCL and law of its certificate jurisdiction of incorporation and bylaws its Constitutive Documents in effect on the date hereof to indemnify such Person person (and Parent the Acquiror shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person person to whom expenses are advanced provides an and undertaking to repay such advances if it is ultimately determined that such Person person is not entitled to indemnification); provided that any determination required to be made with respect to whether an officer's or director's conduct complies with the standards set forth under Delaware law and the Company's Constitutive Documents shall be made by independent counsel selected by the Surviving Corporation and reasonably acceptable to such officer or director.
(b) Any Indemnified Party wishing to claim indemnification under Section 6.11(a) upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify the DGCLAcquiror thereof, but the failure to so notify shall not relieve the Acquiror of any liability it may have to such Indemnified Party if such failure does not materially prejudice the indemnifying party. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (1) the Acquiror or the Surviving Corporation shall have the right to assume the defense thereof and the 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 the Acquiror or the Surviving Corporation elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between the Acquiror or the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and the Acquiror or the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that the Acquiror shall be obligated pursuant to this Section 6.11 to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction (2) the Indemnified Parties will cooperate in the defense of any such matter and (3) the Acquiror shall not be liable for any settlement effected without its prior written consent; and provided further that the Acquiror shall not have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law.
(c) Parent shall cause to be maintained, for For a period of not less than six (6) three years from the Effective Time, the Company’s current directors’ Acquiror shall use its reasonable best efforts to provide that portion of director's and officers’ officer's liability insurance policy that serves to reimburse the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former officers and directors and officers of the Company or any Subsidiary thereof, so long of the Company's Subsidiaries (determined as of the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000Effective Time) (as opposed to the “Maximum Premium”); provided that Parent may, in lieu of maintaining Company) with respect to claims against such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent arising from facts or a separate policy events which occurred before the Effective Time, which insurance shall contain at least the same coverage and amounts, and contain terms and conditions no less advantageous, as that coverage currently provided by the same insurer. If the existing D&O Insurance expiresCompany; provided; however, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed shall the Maximum PremiumAcquiror be required to expend more than 200 percent of the current amount expended by the Acquiror (such product, the "Insurance Amount") to maintain or procure such directors and officers insurance coverage; provided, further, that if the Acquiror is unable to maintain or obtain the insurance called for by this Section 6.11, the Acquiror shall use its reasonable best efforts to obtain as much comparable insurance as is available for the Insurance Amount; provided, further, that officers and directors of the Company or any Company Subsidiary may be required to make application and provide customary representations and warranties to the Acquiror's insurance carrier for the purpose of obtaining such insurance; and provided, further, that such coverage will have a single aggregate for such three-year period in an amount not less than the annual aggregate of such coverage currently provided by the Company.
(d) In If the event Parent, the Surviving Corporation Acquiror or any of their respective its successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person entity and shall not be the continuing or surviving corporation or entity of such consolidation or mergerentity, or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, then and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Acquiror shall assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable in accordance with their terms by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation From and bylaws of after the Effective Time, the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable shall, to the extent permitted by Law: (i) indemnify and hold harmless each individual who served as a director or officer of the Company or any Subsidiary prior to the Effective Time (collectively, the “Indemnified Parties Parties”) against any costs or expenses (as defined below) as set forth including attorney’s fees), judgments, fines, losses, claims, damages, or liabilities incurred in connection with any claim, action, suit, proceeding, or investigation, whether civil, criminal, administrative, or investigative to the extent provided for under the terms and conditions of the certificate of incorporation and bylaws of the Company in effect on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws by-laws of the Company in respect effect on the date of actions this Agreement and indemnification agreements between the Company or any Subsidiary and its current and former officers and directors (each as in effect as of the date hereof and each as has been furnished or made available to the Buyer before the date hereof). The indemnification obligations of the Surviving Corporation pursuant to this Section 5.19(a) shall extend to acts or omissions occurring at or before the Effective Time (including with respect to any acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby) and all rights to indemnification conferred hereunder shall continue as to an individual who has ceased to be a director or officer of the Company or any Subsidiary prior to the Effective Time (includingand shall inure to the benefit of such individual’s heirs, without limitationexecutors and personal and legal representatives. Notwithstanding the foregoing, in no event shall the transactions contemplated by Surviving Corporation be obligated to provide indemnification to any Indemnified Party with respect to any matter for which the Buyer is entitled to indemnification under this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will indemnify the Surviving Corporation shall, to the extent permitted by Law, keep in full force and hold harmless each present effect, and former director comply with the terms and officer of the Companyconditions of, (when acting any agreement in such capacity) determined effect as of the Effective Time (each, an date of this Agreement between or among the Company or any Subsidiary and any Indemnified Party and, collectively, providing for the “indemnification of such Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”), in whole or in part based on or arising in whole or in part out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL)Party.
(c) Parent shall cause to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time (the “D&O Insurance”) for all present and former directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium.
(d) In the event Parent, the Surviving Corporation or any of their respective its successors or assigns shall (i) consolidates consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity Person of such consolidation or merger, merger or (ii) transfers or conveys transfer all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume all of the obligations of the Surviving Corporation set forth in this Section 6.115.19.
(ed) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 5.19 shall survive the consummation of the Merger for a period of six (6) years and (i) are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party and 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. Unless required by Law, the obligations of the Surviving Corporation under this Section 5.19 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified PartiesParty under this Section 5.19 without the consent of such affected Indemnified Party.
(e) Prior to the Effective Time, their heirs the Company shall procure a “tail” policy (the “Tail Policy”) under the Company’s existing directors’ and their representativesofficers’ insurance policy which (i) has an effective term of six (6) years from the Effective Time, (ii) covers those persons who are currently covered by the Company’s directors’ and officers’ insurance policy in effect as of the date hereof for actions and omissions occurring on or prior to the Effective Time and (iii) contains terms and conditions that are, in the aggregate, no less favorable to the insured than those of the Company’s directors’ and officers’ insurance policy in effect as of the date hereof.
Appears in 1 contract
Samples: Merger Agreement (Medicines Co /De)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner Parent agrees that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From from and after the Effective Time, Parent agrees that it and the Surviving Corporation will indemnify and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of the Effective Time Company (each, an “Indemnified Party Party” and, collectively, the “Indemnified Parties”), ) against any all costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole or in part based on or arising in whole or in part out of matters existing actions or omissions in their capacity as officers and directors and occurring at or prior to the Effective TimeTime (including the transactions contemplated by this Agreement) (each a “Claim”), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under applicable Law or required or permitted under the DGCL and its certificate of incorporation and bylaws in effect on Company Charter and/or the date hereof to indemnify such Person Company Bylaws (and Parent or the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under applicable law provided Law or permitted or required under the Company Charter and/or the Company Bylaws; provided, however, 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). Further, the Surviving Corporation shall assume, perform and observe the obligations of the Company under any agreements in effect as of the date of this Agreement to indemnify those Persons who are or have at any time been directors and officers of the Company for their acts and omissions occurring at or prior to the Effective Time in their capacity as officers or directors. The Surviving Corporation shall reasonably cooperate with the Company Indemnified Parties, and the Company Indemnified Parties shall reasonably cooperate with the Surviving Corporation, in the defense of any such claim, action, suit, proceeding or investigation.
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 5.10, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent or the DGCLSurviving Corporation thereof, but the failure to so notify shall not relieve Parent or the Surviving Corporation of any liability it may have to such Indemnified Party if such failure does not materially prejudice Parent or the Surviving Corporation. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) Parent or the Surviving Corporation shall have the right to assume the defense thereof and Parent and the Surviving Corporation shall not be liable to such Indemnified Party for any legal expenses or other counsel or any other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof; provided, however, that none of Parent or the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Claim for which indemnification has been sought by an Indemnified Party hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim or such Indemnified Party otherwise consents in writing to such settlement, compromise or consent, (ii) the Indemnified Party will cooperate in the defense of any such matter and (iii) Parent and the Surviving Corporation shall not be liable for any settlement effected without its prior written consent; provided, however, that Parent and the Surviving Corporation shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law.
(c) Parent shall cause or, with the prior written consent of Parent, the Company may, purchase, at or prior to be maintained, for a period of not less than six (6) years from the Effective Time, a six (6)-year prepaid “tail” policy on terms and conditions providing substantially equivalent benefits as the Company’s current policies of the directors’ and officers’ liability insurance policy maintained by the Company and its Subsidiaries with respect to the extent that it provides coverage for events occurring matters arising at or prior to the Effective Time (Time, covering without limitation the “D&O Insurance”) for all present Merger and former directors and officers the other transactions contemplated hereby, at an aggregate cost up to but not exceeding 300% of the Company or any Subsidiary thereof, so long as the aggregate current annual premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining for such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurerinsurance. If such prepaid “tail” policy has been obtained prior to the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum PremiumEffective Time, Parent shall obtaincause such policy to be maintained in full force and effect, in lieu of such D&O Insurancefor its full term, and cause all obligations thereunder to be honored by the maximum directors’ Surviving Corporation, and officers’ liability no other party shall have any further obligation to purchase or pay for insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premium5.10.
(d) In the event Parent, If the Surviving Corporation or any of their respective its successors or assigns shall (i) consolidates consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys transfer all or substantially all of its properties and assets to any other Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume the obligations set forth in this Section 6.115.10.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, each of Parent agrees that it will and the Surviving Bank shall indemnify and hold harmless each present and former director and director, officer or employee of the CompanyCompany and its Subsidiaries (in each case, (when acting for actions taken in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Company Indemnified Parties”), ) against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole whether arising before or in part based on or after the Effective Time, arising in whole or in part out of the fact that such person is or was a director, officer or employee of the Company or any of its Subsidiaries and pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after including the Effective Timetransactions contemplated by this Agreement, to the fullest extent that such persons are entitled to be indemnified as of the date of this Agreement by the Company would have been permitted under pursuant to the DGCL Company Certificate, the Company Bylaws or the governing or organizational documents of any Subsidiary of the Company applicable to such person. Parent and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (and Parent Surviving Bank shall also advance expenses as incurred by such Company Indemnified Party to the fullest extent permitted under applicable law such persons are entitled to advancement of expenses as of the date of this Agreement by the Company pursuant to the Company Certificate, the Company Bylaws, or the governing or organizational documents of any Subsidiary of the Company; provided that, if requested by Parent, the Person Company Indemnified Party to whom expenses are advanced provides an undertaking (in reasonable and customary form) to repay such advances if it is ultimately determined in a final determination or by a court of competent jurisdiction that such Person Company Indemnified Party is not entitled to indemnification under the DGCL)indemnification.
(cb) For a period of six (6) years after the Effective Time, Parent shall cause to be maintained, for a period maintained in effect the current policies of not less than six (6) years from the Effective Time, the Company’s current directors’ and officers’ liability insurance policy maintained by the Company (provided that Parent may substitute therefor its policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions that are no less advantageous to the extent insured) with respect to claims arising from facts or events that it provides occurred at or before the Effective Time; provided, however, that Parent shall not be obligated to expend, on an annual basis, an amount in excess of 250% of the current annual premium paid as of the date hereof by the Company for such insurance (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then Parent shall cause to be maintained policies of insurance that, in Parent’s good faith determination, provide the maximum coverage for events occurring available at an annual premium equal to the Premium Cap. In lieu of the foregoing, the Company, in consultation with Parent, but only upon the prior written consent of Parent, may (and at the request of Parent, the Company shall use its reasonable best efforts to) obtain at or prior to the Effective Time (a six-year prepaid “tail” policy under the “D&O Insurance”) for all present and former Company’s existing directors and officers of insurance policy providing equivalent coverage to that described in the Company or any Subsidiary thereof, so long as preceding sentence if and to the aggregate premium therefor would not extent that the same may be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent mayobtained for an amount that, in lieu of maintaining such existing D&O Insurance as provided abovethe aggregate, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would does not exceed the Maximum PremiumPremium Cap and, in such case, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to not have any further obligations under this Section 6.11(c) shall in no event exceed the Maximum Premium6.7(b), other than to maintain such prepaid “tail” policy.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(ec) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 6.7 shall survive the Merger Effective Time and are intended to be for the benefit of, and shall be enforceable by, each of the Company Indemnified Parties, their Party and his or her heirs and their representatives. If Parent or any of its successors or assigns, (i) consolidates with or merges into any other entity and will not be the continuing or surviving entity following such consolidation or merger, (ii) transfers all or substantially all of its assets or deposits to any other entity or (iii) engages in any similar transaction, then in each case, Parent will cause proper provision to be made so that the successors and assigns of Parent will expressly assume the obligations set forth in this Section 6.7.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, to the fullest extent permitted under applicable Law and the Company’s Organizational Documents in effect as of the date of this Agreement, Parent agrees that it will indemnify shall cause (including by providing all necessary funding) the Surviving Corporation to (i) indemnify, defend and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Indemnified Parties”), Parties against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with with, arising out of or otherwise related to any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)alleged Proceeding, in whole or in part based on or connection with, arising in whole or in part out of or otherwise related to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to based in whole or in part, or arising in whole or in part out of the fullest extent fact that he or she is or was a director or officer of the Company would have been permitted under or any of its Subsidiaries, including in connection with (A) the DGCL transactions contemplated by this Agreement and its certificate (B) actions to enforce this provision or any other indemnification or advancement right of incorporation any Indemnified Party, and bylaws in effect on the date hereof to indemnify such Person (and Parent shall also ii) advance reasonable documented out-of- pocket expenses as incurred to the fullest extent permitted under applicable law in connection therewith (upon receipt from such Indemnified Party of a request therefor, accompanied by invoices or other relevant documentation); provided the that any Person to whom expenses are so advanced provides an undertaking to repay such advances if it is ultimately determined by final adjudication by the Chosen Courts that such Person is not entitled to indemnification such advanced expenses; provided, further, that any determination required to be made with respect to whether an Indemnified Party’s conduct complies with the standards set forth under applicable Law and the DGCLCompany’s Organizational Documents in effect as of the date of this Agreement shall be made by independent legal counsel selected by the Surviving Corporation and acceptable to the Indemnified Party (such acceptance not to be unreasonably conditioned, withheld or delayed).
(cb) Parent shall cause Prior to be maintained, for a period of not less than six (6) years from the Effective Time, the Company’s current Company shall and, if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay the premium for “tail” insurance policies for the extension of (i) the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies, and (ii) the Company’s existing fiduciary liability insurance policies (collectively, “D&O Insurance”), in each case for a claims reporting or discovery period of the Tail Period with respect to any claim related to matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the transactions or actions contemplated by this Agreement) from the Company’s D&O Insurance carrier as of the date of this Agreement or one or more insurance carriers with the same or better credit rating as such carrier with terms, conditions, retentions and limits of liability that are at least as favorable to the insureds as the Company’s existing policies; provided, however, that in no event shall the premium amount for such policies exceed the amount set forth in Section 7.11(a) of the Company Disclosure Schedule; provided, further, that the Company shall give Parent a reasonable opportunity to participate in the selection of such “tail” insurance policy and the Company shall give reasonable and good faith consideration to any comments made by Parent with respect thereto. If the Company for any reason fails to obtain or Parent for any reason fails to cause to be obtained 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 the Tail Period the D&O Insurance in place as of the date of this Agreement with the Company’s D&O Insurance carrier as of the date of this Agreement or with or one or more insurance carriers with the same or better credit rating as such carrier with terms, conditions, retentions and limits of liability that are at least as favorable to the extent insureds as provided in the Company’s existing policies as of the date of this Agreement, or the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, purchase comparable D&O Insurance for the Tail Period with terms, conditions, retentions and limits of liability that it provides are at least as favorable as provided in the Company’s existing policies as of the date of this Agreement and from an insurance carrier with the same or better credit rating as the Company’s D&O Insurance carrier as of the date of this Agreement, in each case providing coverage with respect to any matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the transactions or actions contemplated by this Agreement); and provided, further, that if the cost of such insurance coverage exceeds such amount, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, obtain a policy with the greatest coverage available for events a cost not exceeding such amount.
(c) During the Tail Period, without the prior written consent of the Indemnified Party, all rights to indemnification and exculpation from liabilities for acts or omissions occurring prior to the Effective Time (and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the “D&O Insurance”) for all present Organizational Documents of the Company and former directors its Subsidiaries or any indemnification agreement between such Indemnified Party and officers of the Company or any Subsidiary thereofof its Subsidiaries, so long in each case, as in effect on the aggregate premium therefor would date of this Agreement, shall not be amended, restated, amended and restated, repealed or otherwise modified in excess any manner that would adversely affect any right thereunder of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining any such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit of the directors and officers of Parent or a separate policy provided by the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can be obtained for the remainder of such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum PremiumIndemnified Party.
(d) In the event Parent, If Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity Person of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume all the obligations set forth in this Section 6.117.11(a).
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel7.11(a) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and are intended to be for the benefit of, and from and after the Effective Time shall be enforceable by, each of the Indemnified Parties, who shall be third-party beneficiaries of this Section 7.11(a).
(f) The rights of the Indemnified Parties under this Section 7.11(a) are in addition to any rights such Indemnified Parties may have under the Organizational Documents of -71- the Company or any of its Subsidiaries, or under any applicable Contracts or Laws and nothing in this Agreement is intended to, shall be construed or shall release, waiver 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 heirs respective directors, officers or other employees (it being understood and their representativesagreed that the indemnification provided for in this Section 7.10(a) is not prior to or in substitution of any such claims under such policies).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Voya Financial, Inc.)
Indemnification; Directors’ and Officers’ Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect to indemnification no more restrictive in scope and no less favorable to the Indemnified Parties (as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable law.
(b) From and after the Effective Time, Parent agrees that it will each of Provident and the Surviving Corporation shall indemnify and hold harmless each present and former director director, officer or employee of Sterling and officer of the Companyits Subsidiaries (in each case, (when acting in such capacity) determined as of the Effective Time (each, an Indemnified Party and, collectively, the “Sterling Indemnified Parties”), ) against any costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities (collectively, “Costs”) incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “Claim”)investigative, in whole whether arising before or in part based on or after the Effective Time, arising in whole or in part out of the fact that such person is or was a director, officer or employee of Sterling or any of its Subsidiaries and pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after including the Effective Time, transactions contemplated by this Agreement to the fullest same extent that the Company would have been permitted under the DGCL and its certificate as such persons are indemnified as of incorporation and bylaws in effect on the date hereof of this Agreement by Sterling pursuant to indemnify such Person (the Sterling Certificate, Sterling’s Bylaws, the governing or organizational documents of any Subsidiary of Sterling and Parent any indemnification agreements in existence as of the date hereof; and Provident and the Surviving Corporation shall also advance expenses as incurred by such Sterling Indemnified Party to the fullest same extent permitted under applicable law provided as such persons are entitled to advancement of expenses as of the Person date of this Agreement by Sterling pursuant to the Sterling Certificate, Sterling’s Bylaws, the governing or organizational documents of any Subsidiary of Sterling and any indemnification agreements in existence as of the date hereof; provided, that the Sterling Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person Sterling Indemnified Party is not entitled to indemnification under the DGCL)indemnification.
(cb) Parent shall cause to be maintained, for For a period of not less than six (6) years from after the Effective Time, the Company’s Surviving Corporation shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance policy maintained by Sterling (provided, that the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions which are no less advantageous to the extent insured) with respect to claims arising from facts or events which occurred at or before the Effective Time; provided, however, that it provides the Surviving Corporation shall not be obligated to expend, on an annual basis, an amount in excess of 300% of the current annual premium paid as of the date hereof by Sterling for such insurance (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then the Surviving Corporation shall cause to be maintained policies of insurance which, in the Surviving Corporation’s good faith determination, provide the maximum coverage for events occurring available at an annual premium equal to the Premium Cap. In lieu of the foregoing, Sterling, in consultation with, but only upon the consent of Provident, may obtain at or prior to the Effective Time (the a six-year “D&O Insurance”) for all present and former tail” policy under Sterling’s existing directors and officers of the Company or any Subsidiary thereof, so long as the aggregate premium therefor would not be in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable insurance policy providing equivalent coverage to be provided under any policy maintained for that described in the benefit of preceding sentence if and to the directors and officers of Parent or a separate policy provided by extent that the same insurer. If the existing D&O Insurance expires, is terminated or canceled by the insurer or if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu of such D&O Insurance, the maximum directors’ and officers’ liability insurance coverage that can may be obtained for the remainder of such period by paying the Maximum Premiuman amount that, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event on an annual basis, does not exceed the Maximum PremiumPremium Cap.
(d) In the event Parent, 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 or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.11.
(ec) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 6.7 shall survive the Merger Effective Time and are intended to be for the benefit of, and shall be enforceable by, each Sterling Indemnified Party and his or her heirs and representatives. If the Surviving Corporation or any of its successors or assigns will consolidate with or merge into any other entity and not be the continuing or surviving entity of such consolidation or merger, transfer all or substantially all of its assets or deposits to any other entity or engage in any similar transaction, then in each case, the Surviving Corporation will cause proper provision to be made so that the successors and assigns of the Indemnified Parties, their heirs and their representativesSurviving Corporation will expressly assume the obligations set forth in this Section 6.7.
Appears in 1 contract
Indemnification; Directors’ and Officers’ Insurance. (a) The From and after the Effective Time, each of Parent and the Surviving Corporation agrees that it will indemnify, defend and hold harmless each present and former director and officer of the Company or any of its Subsidiaries and any fiduciary under any Company Plan (in each case, when acting in such capacity), determined as of the Effective Time (the “Indemnified Parties”), against any costs or expenses (including attorneys’ fees and disbursements), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is or was an officer, director, employee or fiduciary of the Company or any of its Subsidiaries or a fiduciary under any Company Plan, whether asserted or claimed prior to, at or after the Effective Time (including with respect to any acts or omissions in connection with this Agreement and the transactions and actions contemplated hereby), to the fullest extent that the Company would have been permitted under Delaware law and its certificate of incorporation or by-laws (and, to the extent not contrary to Delaware law or its certificate of incorporation, any indemnification agreement) in effect on the date of this Agreement to indemnify such Person (and Parent or the Surviving Corporation shall also promptly advance expenses as incurred to the fullest extent that the Company would have been permitted under Delaware law or its certificate of incorporation or by-laws (and, to the extent not contrary to Delaware law or its certificate of incorporation, any indemnification agreement) in effect on the date of this Agreement; provided that the Person to whom expenses are advanced provides an undertaking, if and only to the extent required by Delaware law of the Company’s certification of incorporation or by-laws, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification); and provided, further, that any determination required to be made with respect to whether an officer’s or director’s conduct complied with the standards set forth under Delaware law and the Company’s certificate of incorporation and bylaws by-laws shall be made by independent counsel selected by the Indemnified Party. In the event of any claim, action, suit, proceeding or investigation, (x) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any claim, action, suit, proceeding or investigation (and in which indemnification could be sought by Indemnified Parties hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such claim, action, suit, proceeding or investigation or such Indemnified Party otherwise consents, and (y) the Surviving Corporation shall cooperate in the defense of such matter. For the avoidance of doubt, the parties agree that this Section 6.12 does not purport to limit any rights that any Indemnified Party may have under any employment agreement, indemnification agreement or Company Plan.
(b) The Charter and By-laws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification no more restrictive in scope and no less favorable advancement of expenses of individuals who were directors and officers prior to the Indemnified Parties (Effective Time than are set forth, as defined below) as set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement, in the Company’s certificate of incorporation and by-laws, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after from the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties under the certificate of incorporation or bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless any such modification is required by applicable lawindividual.
(bc) From and after Prior to the Effective Time, the Company shall and, if the Company is unable to, Parent agrees that it will indemnify and hold harmless each present and former director and officer of shall cause the Company, (when acting in such capacity) determined Surviving Corporation as of the Effective Time to obtain and fully pay for “tail” insurance policies (each, providing only for the Side A coverage for Indemnified Parties where the existing policies also include Side B coverage for the Company) with a claims period of at least six years from and after the Effective Time from an Indemnified Party and, collectively, insurance carrier with the “Indemnified Parties”), against any costs same or expenses (including reasonable attorneysbetter credit rating as the Company’s current insurance carrier with respect to directors’ fees and expenses), judgments, fines, losses, amounts paid in settlement claims, damages or liabilities officers’ liability insurance and fiduciary liability insurance (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, actual or threatened, whether civil, criminal, administrative or investigative (a “ClaimD&O Insurance”), in whole or in part based on or arising in whole or in part out for the persons who, as of the date of this Agreement, are covered by the Company’s existing D&O Insurance, with terms, conditions, retentions and levels of coverage at least as favorable as the Company’s existing D&O Insurance with respect to matters existing or occurring at or prior to the Effective TimeTime (including in connection with this Agreement or the transactions or actions contemplated hereby), whether asserted or claimed prior to, at or after and Parent shall cause the Surviving Corporation to maintain such D&O Insurance in full force and effect for their full terms. If the Company and the Surviving Corporation for any reason fail to obtain such “tail” insurance policies as of the Effective Time, to the fullest extent that the Company would have been permitted under the DGCL and its certificate of incorporation and bylaws in effect on the date hereof to indemnify such Person (Surviving Corporation shall, and Parent shall also advance expenses as incurred cause the Surviving Corporation to, continue to maintain in effect, at no expense to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under the DGCL).
(c) Parent shall cause to be maintainedbeneficiaries, for a period of not less than at least six (6) years from and after the Effective TimeTime for the persons who, as of the date of this Agreement, are covered by the Company’s D&O Insurance in place as of the date of this Agreement with terms, conditions, retentions and levels of coverage at least as favorable as provided in the Company’s existing policies as of the date of this Agreement, or, if such insurance is unavailable, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, purchase the best available D&O Insurance for such six-year period from an insurance carrier with the same or better credit rating as the Company’s current directors’ and officers’ liability insurance policy carrier with respect to the extent that it provides Company’s existing D&O Insurance with terms, conditions, retentions and with levels of coverage for events occurring prior to at least as favorable as provided in the Effective Time (the “D&O Insurance”) for all present and former directors and officers Company’s existing policies as of the Company date of this Agreement. Notwithstanding anything in the foregoing, in no event shall Parent or any Subsidiary thereof, so long as the aggregate Surviving Corporation be required to expend for such policies an annual premium therefor would not be amount in excess of Four Million Dollars ($4,000,000) (the “Maximum Premium”); provided that Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause no less favorable coverage to be provided under any policy maintained for the benefit 300% of the directors and officers of Parent or a separate policy provided annual premiums currently paid by the same insurer. If the existing D&O Insurance expiresCompany for such insurance; and provided further, is terminated or canceled by the insurer or that if the aggregate premium would exceed the Maximum Premium, Parent shall obtain, in lieu annual premiums of such D&O Insuranceinsurance coverage exceed such amount, the maximum directors’ and officers’ liability insurance Surviving Corporation shall obtain a policy with the greatest coverage that can be obtained available for the remainder of a cost not exceeding such period by paying the Maximum Premium, provided that aggregate premiums payable by Parent for the D&O Insurance pursuant to this Section 6.11(c) shall in no event exceed the Maximum Premiumamount.
(d) In the event Parent, If Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, Corporation shall assume all of the obligations set forth in this Section 6.116.12.
(e) The provisions of this Section 6.11 are in addition to the rights that an Indemnified Party may have under the certificate of incorporation, bylaws or agreements of or with the Company or any of its Subsidiaries or under applicable law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.11. The provisions of this Section 6.11 shall survive the Merger and 6.12 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified PartiesParties and their respective successors, their heirs and legal representatives, shall be binding on all successors and assigns of Parent and the Surviving Corporation and shall not be amended in any matter that is adverse to the Indemnified Parties (including their successors, heirs and legal representatives) without the consent of the Indemnified Party (including the successors, heirs and legal representatives) affected thereby.
(f) The rights of the Indemnified Parties under this Section 6.12 shall be in addition to any rights such Indemnified Parties may have under the certificate of incorporation or by-laws of the Company or any of its Subsidiaries, or under any applicable Contracts or Laws, and Parent shall, and shall cause the Surviving Corporation to, honor and perform under all indemnification agreements entered into by the Company or any of its Subsidiaries.
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