Appears in 4 contracts

Samples: Agreement and Plan of Merger (Aditxt, Inc.), Agreement and Plan of Merger (Evofem Biosciences, Inc.), Merger Agreement (Aditxt, Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing as~~ In the event of ~~the date of this Agreement to indemnification~~any threatened or actual claim, ~~advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors~~action, ~~officers~~ suit, proceeding or ~~employees of the Company~~ investigation, whether civil, criminal or ~~any of its Subsidiaries as provided in the Organizational Documents of the Company or~~ administrative (a “Claim”), including any such ~~Subsidiary,~~ Claim in which any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person individual who is now, or has been at any time prior to the date of this ~~Agreement~~ Agreement, or who becomes prior to the Exchange Effective Time, a director or officer of the Company or any ~~of its Subsidiaries~~ Company Subsidiary or who is or was serving at the request of the Company or any ~~of its Subsidiaries~~ Company Subsidiary as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise~~ person (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified LiabilitiesParties”), ~~including all Indemnified Liabilities~~ is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining ~~to, this Agreement or the Transactions, in each case,~~ to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the ~~Indemnified Persons may retain the Company’s regularly engaged legal counsel~~ fact that he is or ~~other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses~~ was a director or officer of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries prior to the Exchange Effective Time or (ii) this Agreement or any of the transactions contemplated by this Agreement, whether asserted or arising before or after the Exchange Effective Time, the parties shall cooperate and use their best efforts to defend against and respond thereto. All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Exchange Effective Time now existing in favor of any Indemnified Party as provided in their respective certificates or articles of incorporation or by-laws (or comparable organizational documents), and any existing indemnification agreements set forth in Section 8.7 of ~~its directors~~the Company Disclosure Schedule, ~~officers~~ shall survive the Transaction and shall continue in full force and effect in accordance with their terms, and shall not be amended, repealed or ~~employees existing immediately~~ otherwise modified after the Exchange Effective Time in any manner that would adversely affect the rights thereunder of such individuals for acts or omissions occurring at or prior to the Exchange Effective Time or taken at the request of Parent pursuant to Section 8.8 hereof. (b) From and after the Exchange Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, to the fullest extent permitted by applicable law, indemnify, defend and hold harmless, and provide advancement of expenses to, each Indemnified Party against all losses, claims, damages, costs, expenses, liabilities or judgments or amounts that are paid in settlement of or in connection with any Claim based in whole or in part on or arising in whole or in part out of the fact that such person is or was a director or officer of the Company or any Subsidiary of the Company, and pertaining to any matter existing or occurring, or any acts or omissions occurring, at or prior to the Exchange Effective Time, whether asserted or claimed prior to, or at or after, the Exchange Effective Time (including matters, acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby) or taken at the request of Parent pursuant to Section 8.8 hereof. (c) To Parent shall cause the ~~extent permitted by applicable Law, Parent~~ individuals serving as officers and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents directors of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay Subsidiaries immediately prior to the Exchange Effective ~~Time, “tail” insurance policies (collectively, the “D&O Insurance”) with~~ Time to be covered for a ~~claims~~ period of ~~at least~~ six years from the Exchange Effective Time ~~from an insurance carrier with~~ by the ~~same or better credit rating as the Company’s current insurance carrier with respect to~~ directors’ and officers’ liability ~~insurance, fiduciary liability~~ insurance ~~and employment practices liability insurance in an amount and scope~~ policy maintained by the Company (provided that Parent may substitute therefor policies of at least ~~as favorable as~~ the ~~Company’s existing policies~~ same coverage and amounts containing terms and conditions that are not less advantageous than such policy) with respect to ~~matters,~~ acts or omissions existing or occurring at or prior to the Effective Time; provided, however, that Parent shall not be required to pay an annual premium for the D&O Insurance in excess of (for any one year) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Exchange Effective ~~Time~~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 on an annualized basis in the aggregate an amount in excess of 250% of the annual premiums currently paid by the Company (which current amount is set forth in Section 8.7 of the Company Disclosure Schedule) for such insurance (the “Insurance Amount”), and provided further that if Parent is unable to maintain such policy (or such substitute policy) as a result of the preceding proviso, Parent shall obtain as much comparable insurance as is available for ~~a cost not exceeding such amount~~the Insurance Amount. (ed) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 8.7 shall survive the Exchange Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4.

Appears in 4 contracts

Samples: Transaction Agreement (Compass Bancshares Inc), Transaction Agreement (Banco Bilbao Vizcaya Argentaria, S.A.), Transaction Agreement (Banco Bilbao Vizcaya Argentaria, S.A.)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees~~ Without limiting any other rights that ~~all rights existing as of the date of this Agreement~~ any Indemnified Person may have pursuant to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoingotherwise, from the Initial Company Merger Effective Time and ~~after~~ until the six (6) year anniversary of the Initial Company Merger Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold ~~harmless~~ harmless, in the same manner as provided by the Company immediately prior to the date of this Agreement (including, for the avoidance of doubt, by maintaining the protections afforded to directors and officers of the Company in the event of a future change in applicable law (including changes in law after the date of this Agreement) set forth in Article 7 of the Third Amended and Restated Certificate of Incorporation of the Company, as amended), each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Initial Company Merger Effective Time, a director or officer of the Company or any of its Subsidiaries or who acts as a fiduciary under any Company Benefit Plan or is or was serving at the request of the Company or any of its Subsidiaries as a ~~director~~ director, officer or ~~officer~~ fiduciary of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other ~~enterprise~~ enterprise, in each case, when acting in such capacity (the “Indemnified Persons”) against ~~and from~~ all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), ~~liabilities,~~ liabilities or judgments ~~and~~ or amounts that are paid in ~~settlement of~~settlement, of or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person ~~is, was or becomes~~ is a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a ~~director, officer, employee~~ director or ~~agent~~ officer of the Company or any of its ~~Subsidiaries~~ Subsidiaries, a fiduciary under any Company Benefit Plan or is or was serving at the request of the Company or any of its Subsidiaries as a ~~director~~ director, officer or ~~officer~~ fiduciary of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other ~~enterprise~~ enterprise, as applicable, or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, ~~at or after~~ but not after, the Initial Company Merger Effective Time and whether asserted or claimed prior to, at or after the Initial Company Merger Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each ~~case,~~ case to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection ~~therewith~~ therewith, including but not limited to expenses for the retention of the Company’s regularly engaged legal counsel or other counsel satisfactory to them, in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Initial Company Merger Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to ~~such Indemnified Person~~them, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) Parent and the Surviving Company shall use ~~its reasonable~~ their best efforts to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 6.10, upon learning of any such Proceeding, shall notify Parent and the Surviving Company (but the failure so to notify shall not relieve a Party from any obligations that it may have under this Section 6.10 except to the extent such failure materially prejudices such Party’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section ~~6.4~~6.10, such Indemnified Person shall have the ~~right~~ right, as contemplated by the DGCL, to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving ~~Company, the~~ Company or the Indemnified Person within the last three (3) years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) ~~For a period of~~ Parent and Merger Sub II agree that, until the six (6) ~~years following~~ year anniversary date of the Initial Company Merger Effective Time, that neither Parent ~~and~~ nor the Surviving Company shall ~~not~~ amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Indemnified Person to indemnification, exculpation and ~~expense~~ advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of ~~its directors,~~ their respective directors or officers ~~or employees~~ existing and in effect immediately prior to the Initial Company Merger Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section ~~6.4(a~~6.10(a), relating to the enforcement of such Indemnified Person’s rights under this Section ~~6.4~~ 6.10 or under any ~~Organizational Documents of the Company~~ charter, bylaw or ~~any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise,~~ Contract regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall cause to be put in place, and Parent shall fully prepay immediately prior to the Initial Company Merger Effective Time, “tail” insurance policies ~~(collectively, the “D&O Insurance”)~~ with a claims reporting or discovery period of at least six (6) years from the Initial Company Merger Effective Time (the “Tail Period”) 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, fiduciary liability~~ insurance ~~and employment practices liability insurance~~ (“D&O Insurance”) in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at at, prior to, or ~~prior to~~ after, the Initial Company Merger Effective Time; provided, however, that ~~Parent~~ in no event shall ~~not be required to pay an annual premium for~~ the aggregate cost of the D&O Insurance ~~in excess of (for any one year) 150~~exceed during the Tail Period 300% of the current aggregate annual premium paid by the Company for such ~~insurance as of the date of this Agreement~~purpose; and provided, further, that if the ~~annual premiums~~ cost of such insurance coverage ~~exceed~~ exceeds such amount, ~~Parent~~ the Surviving Company shall ~~be obligated to~~ obtain a policy with the greatest coverage ~~available, with respect to facts, acts, events or omissions occurring prior to the Effective Time,~~ reasonably available for a cost not exceeding such amount. (e) In the event that Parent, the Surviving Company or any ~~Subsidiary~~ of ~~the Surviving Company,~~ their Subsidiaries or any of their respective successors or ~~assigns,~~ assignees (i) consolidates with or merges into any other Person and shall not be the continuing or surviving ~~company~~ corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of ~~Parent, the Surviving Company~~ Parent or ~~such Subsidiary of~~ the Surviving Company, as the case may be, shall assume the obligations set forth in this Section ~~6.4~~6.10. The provisions of this Section ~~6.4~~ 6.10 are intended to be for the benefit of, and shall be enforceable by, the ~~parties~~ Parties and each Person entitled to ~~indemnification, exculpation,~~ indemnification or insurance coverage or expense advancement ~~or any other right~~ pursuant to this Section ~~6.4~~6.10, and ~~his, her or its~~ his heirs and ~~representatives~~Representatives. The rights of the Indemnified Persons under this Section ~~6.4~~ 6.10 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable ~~contracts~~ Contracts or Law. To the extent permitted by applicable Law, Parent and the Surviving Company shall pay all expenses, including reasonable and documented attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section ~~6.4~~6.10.

Appears in 4 contracts

Samples: Merger Agreement (Earthstone Energy Inc), Merger Agreement (Earthstone Energy Inc), Agreement and Plan of Merger (Permian Resources Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Wax Effective Time, ~~Parent and~~ Holdco shall, to the extent the Wax Surviving Company ~~shall~~is permitted to by applicable Law, ~~jointly~~ and ~~severally~~shall cause, ~~indemnify~~the Wax Surviving Company to, ~~defend~~ indemnify and hold harmless each ~~Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a~~ present and former director or and officer of the Company ~~or any of its Subsidiaries or is or was serving at the request~~ determined as of the ~~Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise~~ Wax Effective Time (the “Indemnified ~~Persons~~Parties”) against ~~and from all~~ any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, ~~damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of,~~ damages or liabilities incurred in connection with any ~~threatened~~ claim, action, suit, proceeding or ~~actual Proceeding to which such Indemnified Person is~~investigation, ~~was~~ whether civil, criminal, administrative or ~~becomes a party or is otherwise involved~~ investigative (including ~~as a witness) based~~with respect to matters existing or occurring at or prior to the Wax Effective Time (including this Agreement and the Transactions)), ~~in whole or in part, on or arising, in whole or in part,~~ arising out of the fact that such ~~Person~~ Indemnified Party is or was a director, officer, employee or agent of the Company or any of its ~~Subsidiaries~~ Subsidiaries, or is or was serving at the request of the Company ~~or any of its Subsidiaries~~ as a ~~director~~ director, officer, employee or ~~officer~~ agent of another ~~corporation~~Person prior to the Wax Effective Time, ~~partnership~~in each case, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Wax Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each caseTime, to the fullest extent permitted under ~~applicable Law~~ Delaware Law, the Company Charter or Company Bylaws or comparable organizational or governing documents of a Company Subsidiary, in effect on the date of this Agreement to indemnify such Person and Holdco (~~and Parent~~ to the extent it would be permitted if Holdco were the Wax Surviving Company) and the Wax Surviving Company ~~shall, jointly and severally, pay~~ shall also advance expenses of such Persons as incurred ~~in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person~~ to the fullest extent permitted ~~under~~ under, and subject to the limitations in, applicable Law), the Company Charter or Company Bylaws or comparable organizational or governing documents of a Company Subsidiary. ~~Without limiting~~ Holdco shall ensure that the ~~foregoing~~organizational documents of the Wax Surviving Company shall, for a period of six years from and after the Wax Effective Time, contain provisions no less favorable 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 ~~event any such Proceeding is brought or threatened~~ Company Charter and Company Bylaws. Any right of indemnification of an Indemnified Party pursuant to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval 5.12 shall not be ~~unreasonably withheld or delayed)~~amended, and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment repealed or otherwise ~~seek termination with respect to~~ modified at any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out time in a manner that would adversely affect the rights of such ~~Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any~~ Indemnified ~~Person~~Party as provided herein. (b) ~~For a period of six (6) years following~~ Prior to the Wax Effective Time, Parent and the ~~Surviving~~ Company shall ~~not amend~~and, ~~repeal~~ if Parent or ~~otherwise modify any provision in~~ the ~~Organizational Documents of the Surviving~~ Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnificationis unable to, ~~exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and~~ Holdco shall cause the Wax Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as ~~provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents~~ of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined Wax Effective Time to ~~be entitled to indemnification hereunder or thereunder. (d) Parent~~ obtain and ~~the Surviving Company shall put in place, and Parent shall~~ fully ~~prepay immediately prior to the Effective Time,~~ pay for “tail” insurance policies ~~(collectively, the “D&O Insurance”)~~ with a claims period of at least six years from and after the Wax 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,~~ insurance and fiduciary liability insurance (collectively, “D&O Insurance”) with benefits and ~~employment practices liability insurance in an amount and scope~~ levels of coverage at least as favorable as the Company’s existing policies with respect to ~~matters, acts or omissions~~ matters existing or occurring at or prior to the Wax Effective ~~Time~~Time (including in connection with this Agreement or the Transactions); provided, however, that ~~Parent~~ in no event shall ~~not be required to pay an annual~~ the Company expend for such policies a premium ~~for the D&O Insurance~~ amount in excess of ~~(for any one year) 150~~300% of the annual ~~premium~~ premiums currently paid by the Company for such insurance. If the Company and the Wax Surviving Company for any reason fail to obtain such “tail” insurance policies as of the Wax Effective Time, the Wax Surviving Company shall, and Holdco shall cause the Wax Surviving Company to, continue to maintain in effect for a period of at least six years from and after the Wax 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 the Wax Surviving Company shall, and Holdco shall cause the Wax Surviving Company to, purchase comparable D&O Insurance for such six-year period with benefits and levels of coverage at least as favorable as provided in the Company’s existing policies as of the date of this Agreement; ~~and~~ provided, ~~further~~however, that in no event shall the Company expend, or Holdco or the Wax Surviving Company be required to expend, for such policies an amount in excess of 300% of the annual premiums currently paid by the Company for such insurance; and, provided further that if the ~~annual premiums of~~ premium for such insurance coverage ~~exceed~~ exceeds such amount, ~~Parent~~ Holdco shall, or shall ~~be obligated to~~ cause the Wax Surviving Company to, obtain a policy with the greatest coverage ~~available, with respect to facts, acts, events or omissions occurring prior to the Effective Time,~~ available for a cost not exceeding such amount. (ec) In If Holdco or the ~~event that Parent, the~~ Wax Surviving Company or any ~~Subsidiary of the Surviving Company, or any~~ of their ~~respective~~ successors or ~~assigns,~~ assigns (i) ~~consolidates~~ shall consolidate with or ~~merges~~ merge into any other ~~Person~~ corporation or entity and shall not be the continuing or surviving ~~company~~ corporation or entity of such consolidation or merger or (ii) ~~transfers~~ shall transfer all or substantially all of its properties and assets to any ~~Person~~individual, corporation or other entity, then, and in each such case, proper provisions shall be made so that the successors and assigns of ~~Parent~~Holdco, or the Wax Surviving Company ~~or such Subsidiary~~ shall assume all of the obligations of Holdco or the Wax Surviving ~~Company, as the case may be, shall assume the obligations~~ Company set forth in this Section ~~6.4.~~ 5.12, as applicable. (d) The provisions of this Section ~~6.4~~ 5.12 are intended to be for the benefit of, and shall be enforceable by, each of the ~~parties and each Person entitled to indemnification~~Indemnified Parties, ~~exculpation, insurance coverage or expense advancement or any other right pursuant to this Section 6.4, and his, her or its~~ their heirs and their representatives. The rights of ~~the~~ each Indemnified ~~Persons~~ Party under this Section ~~6.4 are~~ 5.12 shall be in addition to any rights such ~~Indemnified Persons~~ individual may have under Delaware Law, any applicable indemnification agreement to which such Person is a party, the ~~Organizational Documents~~ Company Charter or the Company Bylaws. (e) Neither Holdco nor the Wax Surviving Company 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. Holdco shall, and shall cause its Subsidiaries to, cooperate in the defense of any such Proceeding for which indemnification could be sought by an Indemnified Party pursuant to this Agreement, the Company Charter, the Company Bylaws and any comparable organizational or governing documents of any of the Company’s Subsidiaries. (f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its ~~Subsidiaries~~Subsidiaries for any of their respective directors, officers or ~~under any applicable contracts or Law. Parent~~ other employees, it being understood and agreed that the ~~Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations~~ indemnification provided for in this Section ~~6.4~~5.12 is not prior to or in substitution for any such claims under such policies.

Appears in 4 contracts

Samples: Agreement and Plan of Merger (Fox Corp), Amended and Restated Agreement and Plan of Merger (New Fox, Inc.), Agreement and Plan of Merger (Twenty-First Century Fox, Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the First Effective Time, Parent ~~and~~ shall, to the extent the Initial Surviving Company ~~shall~~is permitted to by applicable Law, ~~jointly~~ and ~~severally~~shall cause, ~~indemnify~~the Initial Surviving Company to, ~~defend~~ indemnify and hold harmless each ~~Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a~~ present and former director or and officer of the Company ~~or any of its Subsidiaries or is or was serving at the request~~ determined as of the ~~Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise~~ First Effective Time (the “Indemnified ~~Persons~~Parties”) against ~~and from all~~ any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, ~~damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of,~~ damages or liabilities incurred in connection with any ~~threatened~~ claim, action, suit, proceeding or ~~actual Proceeding to which such Indemnified Person is~~investigation, ~~was~~ whether civil, criminal, administrative or ~~becomes a party or is otherwise involved~~ investigative (including ~~as a witness) based~~with respect to matters existing or occurring at or prior to the First Effective Time (including this Agreement and the Transactions)), ~~in whole or in part, on or arising, in whole or in part,~~ arising out of the fact that such ~~Person~~ Indemnified Party is or was a director, officer, employee or agent of the Company or any of its ~~Subsidiaries~~ Subsidiaries, or is or was serving at the request of the Company ~~or any of its Subsidiaries~~ as a ~~director~~ director, officer, employee or ~~officer~~ agent of another ~~corporation~~Person prior to the First Effective Time, ~~partnership~~in each case, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the First Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each caseTime, to the fullest extent permitted under ~~applicable Law (~~Delaware Law, the Company Charter or Company Bylaws or comparable organizational or governing documents of a Company Subsidiary, in effect on the date of this Agreement to indemnify such Person and Parent (to the extent it would be permitted if Parent were the Initial Surviving Company) and the Initial Surviving Company ~~shall, jointly and severally, pay~~ shall also advance expenses of such Persons as incurred ~~in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person~~ to the fullest extent permitted ~~under~~ under, and subject to the limitations in, applicable Law), the Company Charter or Company Bylaws or comparable organizational or governing documents of a Company Subsidiary. ~~Without limiting~~ Parent shall ensure that the ~~foregoing~~organizational documents of the Initial Surviving Company shall, for a period of six years from and after the First Effective Time, contain provisions no less favorable 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 ~~event any such Proceeding is brought or threatened~~ Company Charter and Company Bylaws. Any right of indemnification of an Indemnified Party pursuant to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval 5.12 shall not be ~~unreasonably withheld or delayed)~~amended, and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment repealed or otherwise ~~seek termination with respect to~~ modified at any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out time in a manner that would adversely affect the rights of such ~~Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any~~ Indemnified ~~Person~~Party as provided herein. (b) ~~For a period of six (6) years following~~ Prior to the First Effective Time, ~~Parent and~~ the ~~Surviving~~ Company shall ~~not amend~~and, ~~repeal or otherwise modify any provision in~~ if the ~~Organizational Documents of the Surviving~~ Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnificationis unable to, ~~exculpation and expense advancement except to the extent required by applicable Law.~~ Parent ~~shall, and~~ shall cause the Initial Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as ~~provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents~~ of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined First Effective Time to ~~be entitled to indemnification hereunder or thereunder. (d) Parent~~ obtain and ~~the Surviving Company shall put in place, and Parent shall~~ fully ~~prepay immediately prior to the Effective Time,~~ pay for “tail” insurance policies ~~(collectively, the “D&O Insurance”)~~ with a claims period of at least six years from and after the First Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability ~~insurance,~~ insurance and fiduciary liability insurance (collectively, “D&O Insurance”) with benefits and ~~employment practices liability insurance in an amount and scope~~ levels of coverage at least as favorable as the Company’s existing policies with respect to ~~matters, acts or omissions~~ matters existing or occurring at or prior to the First Effective ~~Time~~Time (including in connection with this Agreement or the Transactions); provided, however, that ~~Parent~~ in no event shall ~~not be required to pay an annual~~ the Company expend for such policies a premium ~~for the D&O Insurance~~ amount in excess of ~~(for any one year) 150~~300% of the annual ~~premium~~ premiums currently paid by the Company for such insurance. If the Company and the Initial Surviving Company for any reason fail to obtain such “tail” insurance policies as of the First Effective Time, the Initial Surviving Company shall, and Parent shall cause the Initial Surviving Company to, continue to maintain in effect for a period of at least six years from and after the First 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 the Initial Surviving Company shall, and Parent shall cause the Initial Surviving Company to, purchase comparable D&O Insurance for such six-year period with benefits and levels of coverage at least as favorable as provided in the Company’s existing policies as of the date of this Agreement; ~~and~~ provided, ~~further~~however, that in no event shall the Company expend, or Parent or the Initial Surviving Company be required to expend, for such policies an amount in excess of 300% of the annual premiums currently paid by the Company for such insurance; and, provided further that if the ~~annual premiums of~~ premium for such insurance coverage ~~exceed~~ exceeds such amount, Parent shall, or shall ~~be obligated to~~ cause the Initial Surviving Company to, obtain a policy with the greatest coverage ~~available, with respect to facts, acts, events or omissions occurring prior to the Effective Time,~~ available for a cost not exceeding such amount. (ec) ~~In the event that~~ If Parent, the Initial Surviving Company or any ~~Subsidiary of the Surviving Company, or any~~ of their ~~respective~~ successors or ~~assigns,~~ assigns (i) ~~consolidates~~ shall consolidate with or ~~merges~~ merge into any other ~~Person~~ corporation or entity and shall not be the continuing or surviving ~~company~~ corporation or entity of such consolidation or merger or (ii) ~~transfers~~ shall transfer all or substantially all of its properties and assets to any ~~Person~~individual, corporation or other entity, then, and in each such case, proper provisions shall be made so that the successors and assigns of ~~Parent,~~ Parent or the Initial Surviving Company ~~or such Subsidiary~~ shall assume all of the obligations of Parent or the Initial Surviving ~~Company, as the case may be, shall assume the obligations~~ Company set forth in this Section ~~6.4~~5.12, as applicable. From and after the Second Effective Time, all references in this Section 5.12 to the First Effective Time shall be deemed to refer to the Second Effective Time and all references to the Initial Surviving Company shall be deemed to refer to the Final Surviving Entity, mutatis mutandis. (d) The provisions of this Section ~~6.4~~ 5.12 are intended to be for the benefit of, and shall be enforceable by, each of the ~~parties and each Person entitled to indemnification~~Indemnified Parties, ~~exculpation, insurance coverage or expense advancement or any other right pursuant to this Section 6.4, and his, her or its~~ their heirs and their representatives. The rights of ~~the~~ each Indemnified ~~Persons~~ Party under this Section ~~6.4 are~~ 5.12 shall be in addition to any rights such ~~Indemnified Persons~~ individual may have under Delaware Law, any applicable indemnification agreement to which such Person is a party, the ~~Organizational Documents~~ Company Charter or the Company Bylaws. (e) None of Parent, the Initial Surviving Company or the Final Surviving Entity 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. Parent shall, and shall cause its Subsidiaries to, cooperate in the defense of any such Proceeding for which indemnification could be sought by an Indemnified Party pursuant to this Agreement, the Company Charter, the Company Bylaws and any comparable organizational or governing documents of any of the Company’s Subsidiaries. (f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its ~~Subsidiaries~~Subsidiaries for any of their respective directors, officers or ~~under any applicable contracts or Law. Parent~~ other employees, it being understood and agreed that the ~~Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations~~ indemnification provided for in this Section ~~6.4~~5.12 is not prior to or in substitution for any such claims under such policies.

Appears in 4 contracts

Samples: Merger Agreement (Twenty-First Century Fox, Inc.), Merger Agreement (Walt Disney Co/), Merger Agreement (Walt Disney Co/)

Indemnification; Directors’ and Officers’ Insurance. (a) From and after the Effective Time until the sixth (6th) anniversary thereof, Parent agrees ~~that all rights existing as~~ to cause Surviving Corporation to indemnify and hold harmless each present and former director, officer or employee of ~~the date~~ Company and its Subsidiaries or fiduciaries of ~~this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the~~ Company or any of its Subsidiaries ~~as provided~~ under Company Benefit Plans (in each case, when acting in such capacity) (collectively, the ~~Organizational Documents of the~~ “Company Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection with any ~~such Subsidiary~~threatened or actual claim, ~~any employment agreement~~ action, suit, proceeding or ~~indemnification agreement in effect on the date hereof~~ investigation, whether civil, criminal, administrative or ~~otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms~~investigative, ~~and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and~~ whether arising before or after the Effective Time, ~~Parent and~~ arising in whole or in part out of (i) the ~~Surviving Company shall~~fact that such person is or was a director, ~~jointly and severally, indemnify, defend and hold harmless each Person who is now,~~ officer or ~~has been at any time prior to the date~~ employee of ~~this Agreement or who becomes prior to the Effective Time, a director or officer of the~~ Company or any of its Subsidiaries or is or was ~~serving at the request~~ a fiduciary of ~~the~~ Company or any of its Subsidiaries ~~as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee~~ under Company Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the TransactionsPlans, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought case at or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective ~~Time, “tail” insurance policies~~ Time or (~~collectively, the “D&O Insurance”~~ii) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time, including the Merger and transactions contemplated by this Agreement, the Transaction Documents, the Information Statement and the documents referenced herein and therein, in each case to the same extent (and solely to such extent) as such persons are indemnified as of the date of this Agreement by Company pursuant to the Charter Documents and any indemnification agreements in existence as of the date hereof that are set forth on Section 6.5 of the Company Disclosure Schedule; and Parent shall also cause the Surviving Corporation to advance expenses as incurred by such Company Indemnified Party to the same extent as such persons are entitled to advancement of expenses as of the date of this Agreement by Company pursuant to the Charter Documents and any indemnification agreements in existence as of the date hereof that are set forth on Section 6.5 of the Company Disclosure Schedule; provided, however, that the Company Indemnified Party to whom expenses are advanced provides an undertaking consistent with the Company Certificate, the Company Bylaws, the governing or organizational documents of any Subsidiary of Company or any such indemnification agreements, as applicable, and applicable Law to repay such amounts if it is ultimately determined that such person is not entitled to indemnification. Until the sixth (6th) anniversary of the Effective Time, Parent shall not, and shall not permit the Surviving Corporation or its Subsidiaries to, amend, repeal or otherwise modify any provision in the Surviving Corporation’s or its Subsidiaries’ certificate of formation, certificate of incorporation, articles of incorporation, operating agreement, by-laws or equivalent governing documents as in effect as of the date hereof relating to the exculpation or indemnification (including fee advancement) of any Company Indemnified Party in a manner that would adversely affect the rights of any Company Indemnified Party thereunder. (b) Subject to the following sentence, until the sixth (6th) anniversary of the Effective Time, Parent shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance maintained by 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 which are no less advantageous to the insured in the aggregate) with respect to claims against the present and former officers and directors of Company 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, however, that the Parent and Surviving Corporation shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~300% of the aggregate annual premium paid as of the date hereof by ~~the~~ Company for such insurance as (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then Parent and 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 ~~date~~ foregoing, Company, in consultation with Parent may (and at the request of ~~this Agreement; and provided~~Parent, ~~further, that if the annual premiums of such insurance coverage exceed such amount, Parent~~ Company shall ~~be obligated to~~ use its reasonable best efforts to) obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six (6) year “tail” policy under Company’s existing directors and officers insurance policy 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, ~~for~~ in the aggregate, does not exceed the Premium Cap and, if such a ~~cost not exceeding such amount~~“tail” policy is purchased, Parent and the Surviving Corporation shall have no further obligations under this Section 6.5(b). (ec) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 6.5 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of~~ If the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ Surviving Corporation, or any of its ~~Subsidiaries~~successors or assigns, consolidates with or ~~under~~ merges into any ~~applicable contracts~~ other entity and is not the continuing or ~~Law. Parent and~~ 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 shall pay all expenses, including attorneys’ fees,~~ Corporation will cause proper provision to be made so that ~~may be incurred by any Indemnified Person in enforcing~~ the ~~indemnity~~ successors and ~~other~~ assigns of the Surviving Corporation will expressly assume the obligations ~~provided~~ set forth in this Section ~~6.4~~6.5 (unless such assumption occurs by operation of law).

Appears in 4 contracts

Samples: Merger Agreement (Neff Corp), Merger Agreement (United Rentals North America Inc), Merger Agreement (H&E Equipment Services, Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, Parent ~~and the Surviving Company shall, jointly and severally, indemnify, defend~~ will indemnify and hold ~~harmless~~ harmless, as and to the fullest extent permitted by applicable Law, each ~~Person~~ individual who is now, or has been at any time prior to the date of this ~~Agreement~~ Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of ~~its~~ the Company Subsidiaries or who is or was serving at the request of the Company or any of ~~its~~ the Company Subsidiaries as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise~~ Person (the “"Company Indemnified ~~Persons”~~Parties") against ~~and from all~~ any losses, claims, damages, liabilities, costs~~, fines, penalties~~, expenses (including ~~attorneys’ and other professionals’~~ reimbursement for reasonable fees and ~~expenses~~expenses incurred in advance of the final disposition of any claim, suit, proceeding or investigation to each Company Indemnified Party), ~~liabilities~~judgments, ~~judgments and~~ fines and, subject to approval by Parent, amounts ~~that are~~ paid in settlement ~~of, or incurred~~ in connection with any threatened or actual ~~Proceeding~~ claim, action, suit, proceeding or investigation to which such Company Indemnified ~~Person~~ Party is, ~~was~~ or ~~becomes~~ is threatened to be, made a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining ~~to,~~ to (i) the fact that such individual is or was a director or officer of the Company or any of the Company Subsidiaries or (ii) this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance any of the ~~final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing~~transactions contemplated by this Agreement, ~~in the event any such Proceeding is brought~~ whether asserted or ~~threatened to be brought against any Indemnified Persons (whether~~ arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) ~~For~~ Parent will cause to be maintained in effect for a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from the Effective Time ~~from an~~ the directors' and officers' liability insurance ~~carrier with~~ policy maintained at the Effective Time by the Company (the "Company D&O Policy") (provided, that Parent may substitute therefor policies of at least the same ~~or better credit rating as~~ coverage and amounts and may cause coverage to be extended under the ~~Company’s current insurance carrier~~ Company D&O Policy by obtaining a six-year "tail" policy, in each case containing terms and conditions that are not less advantageous than the Company D&O Policy) with respect to ~~directors’ and officers’ liability insurance~~claims arising from facts, ~~fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters~~events, acts or omissions ~~existing or~~ occurring ~~at or~~ prior to the Effective Time; provided, however, that in no event will Parent ~~shall not~~ be required to ~~pay an annual premium for~~ expend in the ~~D&O Insurance~~ aggregate in excess of ~~(for any one year) 150~~300% of the annual ~~premium~~ aggregate premiums currently paid by the Company for such insurance ~~as of~~ (the ~~date of this Agreement; and provided, further, that if the annual premiums of~~ "Maximum Premium"). If such insurance coverage ~~exceed such amount~~cannot be obtained at all, or can only be obtained at an annual premium in excess of the Maximum Premium, Parent ~~shall~~ will cause to be ~~obligated to obtain a policy with~~ maintained the ~~greatest coverage available, with respect to facts, acts, events or omissions occurring prior~~ most advantageous policies of directors' and officers' insurance obtainable for an annual premium equal to the ~~Effective Time, for a cost not exceeding such amount~~Maximum Premium. (ec) In The provisions of this Section 6.7 will survive the ~~event that Parent~~Effective Time and are intended to be for the benefit of, ~~the Surviving~~ and will be enforceable by, each Company Indemnified Party and his or ~~any Subsidiary of the Surviving Company,~~ her heirs and representatives. (d) If Parent or any of ~~their respective~~ its successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other Person and ~~shall~~ is not be the continuing or surviving ~~company~~ 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 ~~provisions shall~~ provision will be made so that the successors and assigns of Parent, ~~the Surviving Company or such Subsidiary of the Surviving Company,~~ as the case may be, ~~shall~~ will assume the obligations set forth in this Section 6.4. The provisions of this Section 6.4 are intended to be for the benefit of, and shall be enforceable by, the parties and each Person entitled to indemnification, exculpation, insurance coverage or expense advancement or any other right pursuant to this Section 6.4, and his, her or its heirs and representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.46.7.

Appears in 3 contracts

Samples: Merger Agreement (Dex Media Inc), Merger Agreement (Dex Media West LLC), Merger Agreement (R H Donnelley Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, each of Parent and the Surviving ~~Company shall, jointly and severally, indemnify, defend~~ Corporation shall indemnify and hold ~~harmless each Person who is now~~harmless, ~~or has been at any time prior~~ to the ~~date~~ fullest extent permitted by applicable law, each present and former director, officer or employee of ~~this Agreement~~ the Company and its Subsidiaries (in each case, when acting in such capacity) (collectively, the “Company Indemnified Parties”) against any costs or ~~who becomes prior to~~ expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, whether arising before 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~~ director, officer or ~~officer~~ employee of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against~~ person and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions 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 transactions contemplated by this Agreement; and Parent and the Surviving Corporation shall also advance expenses as incurred by such Company Indemnified Party to the fullest extent permitted by applicable law; provided, ~~however~~that the Company Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Company Indemnified Party is not entitled to indemnification. Parent and the Surviving Corporation shall reasonably cooperate with the Company Indemnified Party, and the Company Indemnified Party shall reasonably cooperate with the Parent and the Surviving Corporation, in the defense of any such claim, action, suit, proceeding or investigation. (b) For a period of six (6) 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 the Company (provided, that ~~Parent~~ 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 insured) with respect to claims against the present and former officers and directors of the Company 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 the Surviving Corporation shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~300% of the current annual premium paid as of the date hereof by the Company for such insurance as (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 ~~date~~ foregoing, the Company, in consultation with Parent, may (and at the request of ~~this Agreement; and provided~~Parent, ~~further, that if~~ the ~~annual premiums of such insurance coverage exceed such amount, Parent~~ Company shall ~~be obligated to~~ use its reasonable best efforts to) obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year “tail” policy under the Company’s existing directors and officers insurance policy 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, ~~for~~ in the aggregate, does not exceed the Premium Cap. If the Company purchases such a ~~cost not exceeding~~ “tail policy,” Parent or the Surviving Corporation shall maintain such ~~amount~~“tail policy” in full force and effect and continue to honor its obligations thereunder. (ec) ~~In the event that Parent, the Surviving Company or any Subsidiary~~ The obligations of the Surviving ~~Company~~Corporation, ~~or any of their respective successors or assigns, (i) consolidates with or merges into any other Person~~ Parent and the Company under this Section 6.7 shall not be terminated or modified after the ~~continuing~~ Effective Time in a manner so as to adversely affect any Company Indemnified Party or ~~surviving company or entity~~ any other person entitled to the benefit of ~~such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that~~ this Section 6.7 without the ~~successors and assigns of Parent, the Surviving Company or such Subsidiary~~ prior written consent of the ~~Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4.~~ affected Company Indemnified Party or affected person. (d) The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of~~ If the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ Surviving Corporation or any of its ~~Subsidiaries~~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 ~~under~~ substantially all of its assets or deposits to any ~~applicable contracts~~ other entity or ~~Law. Parent and~~ engage in any similar transaction, then in each case to the ~~Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing~~ extent the ~~indemnity and other~~ obligations ~~provided~~ set forth in this Section ~~6.4~~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 Surviving Corporation will expressly assume the obligations set forth in this Section 6.7.

Appears in 3 contracts

Samples: Merger Agreement (Sterling Bancorp), Merger Agreement (Astoria Financial Corp), Merger Agreement (New York Community Bancorp Inc)

Appears in 3 contracts

Samples: Merger Agreement (Arlington Asset Investment Corp.), Merger Agreement (Ellington Financial Inc.), Merger Agreement (Ellington Financial Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees~~ Without limiting any other rights that ~~all rights existing as of the date of this Agreement~~ any Indemnified Person may have pursuant to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoingotherwise, from the Company Merger Effective Time and ~~after~~ until the six (6) year anniversary of the Company Merger Effective Time, Parent and the Surviving ~~Company~~ Corporation shall, jointly and severally, indemnify, defend and hold ~~harmless~~ harmless, in the same manner as provided by the Company immediately prior to the date of this Agreement, each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Company Merger Effective Time, a director or officer of the Company or any of its Subsidiaries or who acts as a fiduciary under any Company Benefit Plan or is or was serving at the request of the Company or any of its Subsidiaries as a ~~director~~ director, officer or ~~officer~~ fiduciary of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other ~~enterprise~~ enterprise, in each case, when acting in such capacity (the “Indemnified Persons”) against ~~and from~~ all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), ~~liabilities,~~ liabilities or judgments ~~and~~ or amounts that are paid in ~~settlement of~~settlement, of or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person ~~is, was or becomes~~ is a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a ~~director, officer, employee~~ director or ~~agent~~ officer of the Company or any of its ~~Subsidiaries~~ Subsidiaries, a fiduciary under any Company Benefit Plan or is or was serving at the request of the Company or any of its Subsidiaries as a ~~director~~ director, officer or ~~officer~~ fiduciary of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other ~~enterprise~~ enterprise, as applicable, or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior toto or at, ~~at or after~~ but not after, the Company Merger Effective Time and whether asserted or claimed prior to, at or after the Company Merger Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each ~~case,~~ case to the fullest extent permitted under applicable Law (and Parent and the Surviving ~~Company~~ Corporation shall, jointly and severally, pay expenses incurred in connection ~~therewith~~ therewith, in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Company Merger Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to ~~such Indemnified Person~~them, and Parent and the Surviving ~~Company~~ Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) Parent and the Surviving ~~Company~~ Corporation shall use ~~its reasonable~~ their best efforts to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 6.10, upon learning of any such Proceeding, shall notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve a Party from any obligations that it may have under this Section 6.10 except to the extent such failure materially prejudices such Party’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving ~~Company~~ Corporation under this Section ~~6.4~~6.10, such Indemnified Person shall have the ~~right~~ right, as contemplated by the DGCL, to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving ~~Company~~Corporation, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving ~~Company, the Company~~ Corporation or the Indemnified Person within the last three (3) years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) ~~For a period of~~ Parent Parties agree that, until the six (6) ~~years following~~ year anniversary date of the Company Merger Effective Time, that neither Parent ~~and~~ or the Surviving ~~Company~~ Corporation shall ~~not~~ amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving ~~Company~~ Corporation or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving ~~Company~~ Corporation or any of its Subsidiaries of any Indemnified Person to indemnification, exculpation and ~~expense~~ advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving ~~Company~~ Corporation and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of ~~its directors,~~ their respective directors or officers ~~or employees~~ existing and in effect immediately prior to the Company Merger Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving ~~Company~~ Corporation shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section ~~6.4(a~~6.10(a), relating to the enforcement of such Indemnified Person’s rights under this Section ~~6.4~~ 6.10 or under any ~~Organizational Documents of the Company~~ charter, bylaw or ~~any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise,~~ Contract regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving ~~Company shall~~ Corporation will cause to be put in place, and Parent shall fully prepay immediately prior to the Company Merger Effective Time, “tail” insurance policies ~~(collectively, the “D&O Insurance”)~~ with a claims reporting or discovery period of at least six (6) years from the Company Merger Effective Time (the “Tail Period”) 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, fiduciary liability~~ insurance ~~and employment practices liability insurance~~ (“D&O Insurance”) in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at at, prior to, or ~~prior to~~ after, the Company Merger Effective Time; provided, however, that ~~Parent~~ in no event shall ~~not be required to pay an annual premium for~~ the aggregate cost of the D&O Insurance ~~in excess of (for any one year) 150~~exceed during the Tail Period 300% of the current aggregate annual premium paid by the Company for such ~~insurance as of the date of this Agreement~~purpose; and provided, further, that if the ~~annual premiums~~ cost of such insurance coverage ~~exceed~~ exceeds such amount, ~~Parent~~ the Surviving Corporation shall ~~be obligated to~~ obtain a policy with ~~the greatest~~ as much coverage ~~available, with respect to facts, acts, events or omissions occurring prior to the Effective Time,~~ as is reasonably available for a cost not exceeding such amount. (e) In the event that Parent, the Surviving ~~Company~~ Corporation or any ~~Subsidiary~~ of ~~the Surviving Company,~~ their Subsidiaries or any of their respective successors or ~~assigns,~~ assignees (i) consolidates with or merges into any other Person and shall not be the continuing or surviving ~~company~~ corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of ~~Parent,~~ Parent or the Surviving ~~Company or such Subsidiary of the Surviving Company~~Corporation, as the case may be, shall assume the obligations set forth in this Section ~~6.4~~6.10. The provisions of this Section ~~6.4~~ 6.10 are intended to be for the benefit of, and shall be enforceable by, the ~~parties~~ Parties and each Person entitled to ~~indemnification, exculpation,~~ indemnification or insurance coverage or expense advancement ~~or any other right~~ pursuant to this Section ~~6.4~~6.10, and ~~his, her or its~~ his heirs and ~~representatives~~Representatives. The rights of the Indemnified Persons under this Section ~~6.4~~ 6.10 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable ~~contracts~~ Contracts or Law. To the extent permitted by applicable Law, Parent and the Surviving ~~Company~~ Corporation shall pay all expenses, including reasonable and documented attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section ~~6.4~~6.10.

Appears in 3 contracts

Samples: Merger Agreement (Baytex Energy Corp.), Merger Agreement (Ranger Oil Corp), Merger Agreement (Ranger Oil Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing~~ From and after the Effective Time, the Surviving Entity shall indemnify and hold harmless and shall advance expenses as incurred, in each case to the extent (subject to applicable law) such persons are indemnified as of the date of this Agreement by CenterState pursuant to ~~indemnification~~the CenterState Articles, ~~advancement~~ the CenterState Bylaws, the governing or organizational documents of ~~expenses~~ any Subsidiary of CenterState and ~~exculpation from Indemnified Liabilities~~ any indemnification agreements in ~~favor~~ existence as of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof ~~or otherwise (which shall be assumed by Parent~~ and disclosed in Section 6.7(a) of the ~~Surviving Company) will continue in full force~~ CenterState Disclosure Schedule, each present and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a former director or officer of ~~the Company or any of~~ CenterState and its Subsidiaries ~~or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation~~(in each case, ~~partnership~~when acting in such capacity) (collectively, ~~limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (~~the “CenterState Indemnified ~~Persons~~Parties”) against ~~and from all losses~~any costs or expenses (including reasonable attorneys’ fees), ~~claims, damages, costs~~judgments, fines, ~~penalties~~losses, ~~expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of,~~ damages or liabilities incurred in connection with any threatened or actual ~~Proceeding to which such Indemnified Person is~~claim, ~~was~~ action, suit, proceeding or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacityinvestigation, whether ~~pertaining to any act~~ civil, criminal, administrative or ~~omission occurring or existing prior to~~investigative, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of the fact that such ~~Proceeding~~ person is or was a director or officer of CenterState or any of its Subsidiaries and ~~does not include~~ pertaining to matters existing or occurring at or prior to the ~~imposition~~ Effective Time, including the transactions contemplated by this Agreement; provided, that in the case of ~~equitable relief on, or the admission~~ advancement of ~~fault or wrongdoing by~~expenses, any CenterState Indemnified ~~Person~~Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such CenterState Indemnified Party is not entitled to indemnification. (b) For a period of six (6) years ~~following~~ after the Effective Time, ~~Parent and~~ the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and Entity shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement maintained in effect on the ~~date hereof or otherwise, regardless~~ current policies of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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~~insurance maintained by CenterState (provided, ~~fiduciary liability insurance and employment practices liability insurance in an amount and scope~~ that the Surviving Entity may substitute therefor policies with a substantially comparable insurer of at least ~~as favorable as~~ the ~~Company’s existing policies~~ same coverage and amounts containing terms and conditions that are no less advantageous to the insured) with respect to ~~matters~~claims arising from facts or events which occurred at or before the Effective Time; provided that the Surviving Entity shall not be obligated to expend, ~~acts~~ on an annual basis, an amount in excess of 300% of the current annual premium paid as of the date hereof by CenterState 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 available at an annual premium equal to the Premium Cap. In lieu of the foregoing, South State or ~~omissions existing or occurring~~ CenterState, in consultation with, but only upon the consent of South State, may (and at the request of South State, CenterState shall use its reasonable best efforts to) obtain at or prior to the Effective ~~Time; provided, however,~~ Time a six (6)-year “tail” policy under CenterState’s existing directors’ and officers’ insurance policy providing equivalent coverage to that ~~Parent shall not be required to pay an annual premium for~~ described in the ~~D&O Insurance in excess of (for any one year) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement;~~ preceding sentence if and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the ~~Effective Time~~extent that the same may be obtained for an amount that, ~~for a cost~~ in the aggregate, does not ~~exceeding such amount~~exceed the Premium Cap. (ec) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each CenterState Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of~~ If the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ Surviving Entity or any of its ~~Subsidiaries~~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 ~~under~~ (ii) transfers all or substantially all of its assets or deposits to any ~~applicable contracts~~ other person or ~~Law. Parent and~~ engages in any similar transaction, then in each such case, the Surviving ~~Company shall pay all expenses, including attorneys’ fees,~~ Entity will cause proper provision to be made so that ~~may be incurred by any Indemnified Person in enforcing~~ the ~~indemnity~~ successors and ~~other~~ assigns of the Surviving Entity will expressly assume the obligations ~~provided~~ set forth in this Section ~~6.4~~6.7.

Appears in 3 contracts

Samples: Merger Agreement (SOUTH STATE Corp), Merger Agreement (CenterState Bank Corp), Merger Agreement (CenterState Bank Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing as~~ In the event of ~~the date of this Agreement to indemnification~~any threatened or actual claim, ~~advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors~~action, ~~officers~~ suit, proceeding or ~~employees of the Company~~ investigation, whether civil, criminal or ~~any of its Subsidiaries as provided in the Organizational Documents of the Company or~~ administrative, including, without limitation, any such ~~Subsidiary~~claim, action, suit, proceeding or investigation in which any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person individual who is now, or has been at any time prior to the date of this ~~Agreement~~ Agreement, or who becomes prior to the Effective Time, a director or officer or employee of ~~the Company~~ CCB or any of its ~~Subsidiaries~~ Subsidiaries, including any entity specified in the CCB Disclosure Schedule (the "Indemnified Parties"), is, or is ~~or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation~~threatened to be, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes made a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining toto (i) the fact that he is or was a director, officer or employee of CCB or any of its Subsidiaries or any entity specified in the CCB Disclosure Schedule or any of their respective predecessors or (ii) this ~~Agreement~~ Agreement, the Option Agreements or any of the ~~Transactions~~transactions contemplated hereby or thereby, whether in ~~each case~~any case asserted or arising before or after the Effective Time, the parties hereto agree to cooperate and use their best efforts to defend against and respond thereto. It is understood and agreed that after the Effective Time, NCBC shall indemnify and hold harmless, as and to the fullest extent permitted ~~under applicable Law~~ by law, each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorney's fees and ~~Parent and the Surviving Company shall, jointly and severally, pay~~ expenses ~~incurred in connection therewith~~ in advance of the final disposition of any ~~such Proceeding~~ claim, suit, proceeding or investigation to each Indemnified ~~Person~~ Party to the fullest extent permitted ~~under~~ by law upon receipt of any undertaking required by applicable ~~Law~~law)~~. Without limiting the foregoing~~, judgments, fines and amounts paid in ~~the event~~ settlement in connection with any such ~~Proceeding is brought~~ threatened or ~~threatened to be brought against any Indemnified Persons~~ actual claim, action, suit, proceeding or investigation. (~~whether arising before or after the Effective Time), (i~~b) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company NCBC shall use its reasonable best efforts to ~~assist~~ cause the individuals serving as officers and directors of CCB, its Subsidiaries or any entity specified in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything CCB Disclosure Schedule immediately prior to the ~~contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent~~ Effective Time to ~~the entry of any judgment or otherwise seek termination with respect to any Proceeding~~ be covered for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from the Effective Time ~~from an~~ (or the period of the applicable statute of limitations, if longer) by the directors' and officers' liability insurance ~~carrier with~~ policy maintained by CCB (provided that NCBC may substitute therefor policies of at least the same ~~or better credit rating as the Company’s current insurance carrier~~ coverage and amounts containing terms and conditions which are not less advantageous than such policy) with respect to directors’ and officers’ liability insurance, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time; provided, however, that Parent shall not be required to pay an annual premium for the D&O Insurance in excess of (for any one year) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective ~~Time, for a cost not exceeding~~ Time which were committed by such ~~amount~~officers and directors in their capacity as such. (ec) In the event ~~that Parent, the Surviving Company or any Subsidiary of the Surviving Company,~~ NCBC or any of ~~their respective~~ its successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving ~~company~~ 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~~person, then, and in each such case, to the extent necessary, proper ~~provisions~~ provision shall be made so that the successors and assigns of ~~Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall~~ NCBC assume the obligations set forth in this Section ~~6.4.~~ 6.8. (d) The provisions of this Section ~~6.4~~ 6.8 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4.

Appears in 3 contracts

Samples: Merger Agreement (CCB Financial Corp), Merger Agreement (CCB Financial Corp), Merger Agreement (National Commerce Bancorporation)

Indemnification; Directors’ and Officers’ Insurance. (a) From and after the Effective Time, each of Parent ~~agrees that all rights existing as~~ and the Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law, each present and former director, officer or employee of the ~~date~~ Company and its Subsidiaries (in each case, when acting in such capacity) (collectively, the “Company Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, whether arising before or after the Effective Time, arising out of ~~this Agreement to indemnification~~the fact that such person is or was a director, ~~advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers~~ officer or ~~employees~~ employee of the Company or any of its Subsidiaries ~~as provided in the Organizational Documents of the Company~~ and pertaining to matters existing or ~~any such Subsidiary, any employment agreement~~ occurring at or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, ~~a director or officer of~~ including the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or transactions contemplated by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement ~~or the Transactions, in each case,~~ to the fullest extent as would have been permitted ~~under applicable Law (~~by the Company pursuant to the Company Articles, the Company Bylaws, the governing or organizational documents of any Subsidiary of the Company and the MGCL immediately prior to the Effective Time; and Parent and the Surviving Corporation shall also advance expenses as incurred by such Company ~~shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each~~ Indemnified ~~Person~~ Party to the fullest extent as would have been permitted ~~under applicable Law). Without limiting~~ by the ~~foregoing~~Company pursuant to the Company Articles, in the ~~event~~ Company Bylaws, the governing or organizational documents of any ~~such Proceeding is brought or threatened~~ Subsidiary of the Company and the MGCL immediately prior to ~~be brought against any Indemnified Persons (whether arising before or after~~ the Effective Time); provided, ~~(i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person~~that, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Companyif required, the Company ~~or the~~ Indemnified ~~Person within the last three years. Notwithstanding anything~~ Party to ~~the contrary contained in this Agreement, Parent shall~~ whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Company Indemnified Party is not ~~(and Parent shall cause the Surviving Company not to) settle or compromise or consent~~ entitled to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Personindemnification. (b) For a period of six (6) years ~~following~~ after the Effective Time, ~~Parent and~~ the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and Corporation shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement maintained in effect on the ~~date hereof or otherwise, regardless~~ current policies of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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~~insurance maintained by the Company (provided, ~~fiduciary liability insurance and employment practices liability insurance in an amount and scope~~ that the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least ~~as favorable as~~ the ~~Company’s existing policies~~ same coverage and amounts containing terms and conditions which are no less advantageous to the insured) with respect to ~~matters, acts~~ claims arising from facts or ~~omissions existing or occurring~~ events which occurred at or ~~prior to~~ before the Effective Time; provided, however, that ~~Parent~~ the Surviving Corporation shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~200% of the current annual premium paid as of the date hereof by the Company for such insurance as (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 ~~date~~ foregoing, the Company, in consultation with, but only upon the prior written consent of ~~this Agreement;~~ Parent, may (and ~~provided~~at the request of Parent, ~~further, that if~~ the ~~annual premiums of such insurance coverage exceed such amount, Parent~~ Company shall ~~be obligated to~~ use its reasonable best efforts to) obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year “tail” policy under the Company’s existing directors and officers insurance policy 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, ~~for a cost~~ in the aggregate, does not ~~exceeding such amount~~exceed the Premium Cap. (ec) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of~~ If the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ Surviving Corporation or any of its ~~Subsidiaries~~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 ~~under~~ substantially all of its assets or deposits to any ~~applicable contracts~~ other entity or ~~Law~~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 ~~Surviving~~ Company ~~shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in~~ under this Section ~~6.4~~6.7 shall not be terminated or modified in a manner so as to adversely affect the Company Indemnified Party 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 (Cape Bancorp, Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, ~~Parent and~~ the Surviving ~~Company~~ Corporation shall~~, jointly and severally, indemnify, defend~~ : (i) indemnify and hold harmless each ~~Person~~ 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,~~ served as a director or officer of the Company or any of its Subsidiaries prior to the Effective Time (collectively, the “Indemnified Parties”) to the extent provided for under the terms and conditions of the Company Certificate of Incorporation or is the Company Bylaws (each as in effect as of the date hereof), in connection with any Claim (as defined below) and any judgments, damages, losses, claims, liabilities, fines (including excise taxes), penalties and amounts paid in settlement (including all interest, assessments and other charges paid or ~~was serving~~ payable in connection with or in respect of such judgments, damages, losses, claims, liabilities, fines, penalties or amounts paid in settlement) resulting therefrom. The indemnification obligations of the Surviving Corporation pursuant to this Section 5.6(a) shall extend to acts or omissions occurring at or before the ~~request~~ 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 to an individual who has ceased to be a director or officer of the Company or any of its Subsidiaries ~~as a director~~ 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 5.6(a), the term “Claim” means any threatened, asserted, pending or ~~officer of another corporation~~completed claim, ~~partnership~~action, ~~limited liability company~~suit or proceeding, ~~joint venture~~or any inquiry or investigation, ~~Employee Benefit Plan~~whether instituted by the Company, ~~trust~~ any Governmental Authority or any other party, whether civil, criminal, administrative, investigative or other, including any arbitration or other ~~enterprise (the “Indemnified Persons”) against and from all losses~~alternative dispute resolution mechanism, ~~claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts~~ arising out of or pertaining to matters that ~~are paid in settlement of, or incurred in connection with any threatened or actual Proceeding~~ relate to ~~which~~ such Indemnified ~~Person is, was~~ Party’s duties or ~~becomes a party or is otherwise involved (including~~ service as ~~a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was~~ a director, officer, trustee, employee, agent, or fiduciary of the Company, any of its Subsidiaries, any employee benefit plan maintained by any of the foregoing at or ~~agent of~~ prior to the Effective Time and any other Person at the request the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified PersonSubsidiaries. (b) ~~For a period of six (6) years following~~ From and after the Effective Time, ~~Parent and~~ the Surviving ~~Company~~ Corporation shall ~~not amend~~keep in full force and effect, ~~repeal or otherwise modify~~ and comply with the terms and conditions of, any ~~provision~~ agreement in ~~the Organizational Documents~~ effect as of the ~~Surviving Company~~ date of this Agreement between or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between among the Company or any of its Subsidiaries and any Indemnified Party and listed in Section 2.19 of ~~its directors, officers or employees existing immediately prior~~ the ~~Effective Time~~Company Disclosure Schedule providing for the indemnification of such Indemnified Party. (c) ~~To the extent permitted by applicable Law, Parent and~~ If the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company Corporation or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time; provided, however, that Parent shall not be required to pay an annual premium for the D&O Insurance in excess of (for any one year) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amount. (e) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, or any of their respective successors or ~~assigns,~~ assigns shall (i) ~~consolidates~~ consolidate with or ~~merges~~ merge into any other Person and shall not be the continuing or surviving ~~company or entity~~ Person of such consolidation or merger or (ii) ~~transfers~~ transfer all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of ~~Parent,~~ Parent and the Surviving ~~Company or such Subsidiary~~ Corporation, assume all of the obligations of the Surviving ~~Company, as the case may be, shall assume the obligations~~ Corporation set forth in this Section ~~6.4.~~ 5.6. (d) From and after the Effective Time, the Surviving Corporation, together with any insurance policies held by the Surviving Corporation or any of its Subsidiaries on behalf of the Company, any of its Subsidiaries or any of their respective directors and officers, shall be the indemnitor of first resort with respect to any Claim, responsible for all indemnification and advancement of expenses contemplated by this Section 5.6 without regard to any right to indemnification or advancement of expenses that any Indemnified Party may have from any direct or indirect stockholder of the Company (or any affiliate of such stockholder), and without right to seek subrogation, indemnity or contribution. (e) The provisions of this Section ~~6.4~~ 5.6 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, ~~the parties~~ each Indemnified Party and ~~each Person entitled to indemnification~~his or her heirs and representatives and (ii) are in addition to, ~~exculpation~~and not in substitution for, ~~insurance coverage or expense advancement or~~ any other ~~right pursuant~~ rights to ~~this Section 6.4, and his, her~~ indemnification or ~~its heirs and representatives~~contribution that any such Person may have by contract or otherwise. The ~~rights~~ obligations of Parent or the ~~Indemnified Persons~~ Surviving Corporation under this Section ~~6.4 are~~ 5.6 shall not be terminated or modified in ~~addition~~ such a manner as to adversely affect the rights of any ~~rights~~ Indemnified Party under this Section 5.6 without the consent of such affected Indemnified ~~Persons may have~~ Party. (f) Notwithstanding anything to the contrary set forth herein, the Company may, prior to or in connection with the Closing, purchase a “tail” policy under the ~~Organizational Documents~~ Company’s existing directors’ and officers’ insurance policy (the “Tail Policy”), with the cost of such Tail Policy, to the extent unpaid as of the Closing, included in the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4Transaction Expenses.

Appears in 2 contracts

Samples: Merger Agreement (US Oncology Holdings, Inc.), Merger Agreement (McKesson Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Company Merger Effective Time, ~~Parent and~~ the Surviving ~~Company~~ Corporation shall, ~~jointly and severally~~exculpate, indemnify, defend and hold ~~harmless~~ harmless, and provide advancement of expenses, to each Person who is now, or has been at any time prior to the date ~~of this Agreement~~ hereof or who becomes prior to the Company Merger Effective Time, a ~~director~~ manager, director, officer, trustee or ~~officer~~ fiduciary of ~~the Company~~ Xxxx, any Xxxx Subsidiary, Spirit or any ~~of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation~~Spirit Subsidiary (collectively, ~~partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (~~the “Indemnified ~~Persons~~Parties”) against ~~and from~~ all losses, claims, damages, liabilities, costs, Expenses, judgments, fines, ~~penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments~~ penalties and amounts ~~that are~~ paid in settlement of(including all interest, assessments and other charges paid or ~~incurred~~ payable in connection with or in respect of any ~~threatened~~ thereof) relating to or ~~actual Proceeding to which such Indemnified Person is~~resulting from any claim, ~~was~~ action, suit proceeding or ~~becomes a party or is otherwise involved (including as a witness) based,~~ investigation based in whole or in ~~part,~~ part on ~~or arising, in whole or in part, out of~~ the fact ~~that~~ such ~~Person~~ Indemnified Party is or was a manager, director, officer, ~~employee~~ trustee or ~~agent~~ fiduciary of Xxxx, any Xxxx Subsidiary, Spirit or any Spirit Subsidiary, or was prior to the Company ~~or any of its Subsidiaries or is or was~~ Merger Effective Time serving at the request of ~~the Company or~~ any ~~of its Subsidiaries~~ such party as a ~~director~~ manager, director, officer, partner, member, trustee, fiduciary or ~~officer~~ agent of another ~~corporation~~Person, ~~partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether~~ and pertaining to any ~~act~~ matter existing or ~~omission occurring~~ occurring, or ~~existing prior to~~any acts or omissions occurring, at or ~~after~~ prior to the Company Merger Effective ~~Time and~~ Time, whether asserted or claimed prior to, or at or ~~after~~ after, the Company Merger Effective Time (including matters, acts or commission occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby) (the “Indemnified Liabilities”~~), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case,~~ ) to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Personlaw. (b) ~~For~~ Prior to the Company Merger Effective Time, each of Xxxx and Spirit shall use reasonable best efforts to obtain and fully pay for a “tail” prepaid insurance policy or policies with a claim period of six (6) years ~~following the Effective Time, Parent~~ from and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between after the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from the Merger Effective Time from an one or more insurance ~~carrier with the same or better credit rating as the Company’s current insurance carrier~~ carriers believed to be sound and reputable with respect to directors’ and officers’ liability ~~insurance,~~ insurance and fiduciary liability insurance for the current and ~~employment practices~~ former managers, directors, officers, trustees and fiduciaries of Xxxx and the Xxxx Subsidiaries (“Xxxx D&O Insurance”) and of Spirit and the Spirit Subsidiaries (“Spirit D&O Insurance”) as to such Indemnified Party’ status as a manager, director, officer, trustee or fiduciary of Xxxx, the Xxxx Subsidiaries, Spirit and the Spirit Subsidiaries and for facts or events that occurred at or prior to the Company Merger Effective Time, which Xxxx D&O Insurance and Spirit D&O Insurance (i) shall not have an annual premium in excess of 250% of the last annual premium paid by Xxxx (in the case of the Xxxx D&O Insurance) or Spirit (in the case of the Spirit D&O Insurance) (250% of such last annual premium paid by Xxxx, the “Xxxx Maximum Premium” and 250% of such last annual premium paid by Sklyark, the “Spirit Maximum Premium”) prior to the date hereof for its existing directors’ and officers’ liability insurance ~~in an amount~~ and ~~scope~~ fiduciary insurance, (ii) has terms, conditions, retentions and limits of coverage at least as favorable as the ~~Company’s~~ existing ~~policies~~ directors’ and officers’ liability insurance and fiduciary insurance for Xxxx (in the case of the Xxxx D&O Insurance) and Sklyark (in the case of the Spirit D&O Insurance) with respect to ~~matters,~~ matters existing or occurring prior to the Company Merger Effective Time (including with respect to acts or omissions ~~existing or~~ occurring ~~at or prior to~~ in connection with this Agreement and consummation of the ~~Effective Time~~transaction contemplated hereby); provided, however, that ~~Parent shall~~ if terms, conditions, retentions and limits of coverage at least as favorable as the existing directors’ and officers’ liability insurance and fiduciary insurance for Xxxx or Spirit cannot be ~~required to pay~~ obtained or can be obtained only by paying an annual premium ~~for the D&O Insurance~~ in excess of the Xxxx Maximum Premium (in the case of the Xxxx D&O Insurance) or the Spirit Maximum Premium (in the case of the Spirit D&O Insurance), Xxxx, Spirit and the Surviving Corporation, as the case may be, shall only be permitted to obtain as much similar insurance as is reasonably practicable for an annual premium equal to the Xxxx Maximum Premium (in the case of the Xxxx D&O Insurance) or the Spirit Maximum Premium (in the case of the Spirit D&O Insurance), and (iii) the Surviving Corporation after the Company Merger Effective Time shall maintain such policies in full force and effect for their full six (6) year term and to continue to honor its respective obligations thereunder. If Xxxx or Spirit for any ~~one year) 150% of the annual premium paid by the Company for~~ reason fails to obtain such “tail” prepaid insurance as of the ~~date~~ Company Merger Effective Time, the Surviving Corporation shall continue to maintain in effect, for a period of six (6) years from and after the Company Merger Effective Time for the Indemnified Parties as to such Indemnified Party’s status as a manager, director, officer, trustee or fiduciary of Xxxx, the Xxxx Subsidiaries, Spirit and the Spirit Subsidiaries, as the case may be, and for facts or events that occurred at or prior to the Company Merger Effective Time, the existing directors’ and officers’ liability insurance and fiduciary liability insurance for Xxxx and Spirit, which insurance (i) shall not have an annual premium in excess of the Xxxx Maximum Premium (in the case of the Xxxx D&O Insurance) or the Spirit Maximum Premium (in the case of the Spirit D&O Insurance), (ii) shall have terms, conditions, retentions and limits of coverage at least as favorable as the existing directors’ and officers’ liability insurance and fiduciary insurance for Xxxx and Spirit, as applicable, with respect to matters existing or occurring prior to the Company Merger Effective Time (including with respect to acts or omissions occurring in connection with this ~~Agreement~~Agreement and consummation of the transaction contemplated hereby); ~~and~~ provided, further, that if terms, conditions, retentions and limits of coverage at least as favorable as such existing insurance cannot be obtained or can be obtained only by paying an annual premium in excess of the Xxxx Maximum Premium or the Spirit Maximum Premium, as applicable, the Surviving Corporation shall only obtain as much similar insurance as is reasonably practicable for an annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior premium equal to the ~~Effective Time~~Xxxx Maximum Premium or the Spirit Maximum Premium, as applicable, and (iii) the Surviving Corporation shall maintain such policies in full force and effect for ~~a cost not exceeding such amount~~its full six (6) year term and continue to honor its obligations thereunder. (ec) ~~In the event that Parent,~~ If the Surviving ~~Company or any Subsidiary of the Surviving Company,~~ Corporation or any of ~~their respective~~ its successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving ~~company~~ 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 ~~provisions~~ provision shall be made so that the successors and assigns of ~~Parent,~~ the Surviving ~~Company or such Subsidiary of the Surviving Company~~Corporation, as the case may be, shall assume the obligations set forth in this Section ~~6.4~~7.6. The provisions of this Section ~~6.4~~ 7.6 (i) are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Indemnified Party, his or her heirs and ~~each Person entitled to indemnification, exculpation, insurance coverage or expense advancement or any other right pursuant to~~ representatives as third party beneficiaries under this ~~Section 6.4~~Agreement, and ~~his, her or its heirs and representatives. The rights of the Indemnified Persons under this Section 6.4~~ (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any ~~rights~~ such ~~Indemnified Persons~~ person may have ~~under~~ by contract or otherwise. (d) Concurrently with the ~~Organizational Documents~~ Company Merger Effective Time, the Surviving Corporation shall enter into indemnification agreements, in form and substance reasonably acceptable to Spirit, with each member of the ~~Company~~ Surviving Corporation board of directors and its executive officers, to the extent such member of the board of directors or ~~any of its Subsidiaries, or under any applicable contracts or Law. Parent and~~ executive officer does not have an indemnification agreement with the Surviving Corporation as of immediately prior to the Company ~~shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4~~Merger Effective Time.

Appears in 2 contracts

Samples: Merger Agreement (Cole Credit Property Trust II Inc), Merger Agreement (Spirit Realty Capital, Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after Following the Effective Time, ~~Parent~~ Parent, Holding Company and Holdings shall cause the Surviving Corporation to, and the Surviving ~~Company~~ Corporation shall, ~~jointly and severally~~to the fullest extent permitted by Law, ~~indemnify, defend~~ indemnify and hold ~~harmless each Person who is now~~harmless, ~~or has been at any time prior to the date~~ and provide advancement of ~~this Agreement or who becomes prior to the Effective Time~~expenses to, ~~a director or officer~~ all past and present directors, officers, employees and agents of the Company ~~or any of~~ and its Subsidiaries and all other persons who may presently serve or ~~is or was serving~~ have served at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of ~~the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries~~ another person, including as a ~~director~~ fiduciary with respect to an employee benefit plan (the “Indemnified Parties”), in each case, for acts or ~~officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person~~ failures to act in ~~any~~ such capacity, against any costs or expenses (including reasonable attorney’s fees), judgments, amounts paid in settlement, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil or criminal, administrative or investigative, arising out of or pertaining to ~~any act~~ matters existing or ~~omission~~ occurring ~~or existing prior to,~~ at or ~~after~~ prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the Merger and the other transactions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each caseTime, to the ~~fullest~~ same extent ~~permitted under applicable Law (and Parent~~ such individuals are indemnified or have the right to advancement of expenses as of the date of this Agreement by the Company or such Subsidiary pursuant to its Charter Documents, or similar organizational documents, as applicable, and the ~~Surviving Company shall, jointly and severally, pay expenses incurred~~ indemnification agreements identified in ~~connection therewith in advance~~ Section 5.06(a) of the ~~final disposition~~ Company Disclosure Letter. (b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 5.06, upon receiving written notification of any such ~~Proceeding~~ claim, action, suit, proceeding or investigation, shall promptly notify Parent or the Surviving Corporation thereof, but the failure to ~~each~~ so notify shall not relieve the Surviving Corporation of any liability it may have to such Indemnified ~~Person~~ Party except if, and only to the ~~fullest~~ extent ~~permitted under applicable Law)~~that, such failure materially and irreversibly prejudices Parent. ~~Without limiting the foregoing, in~~ In the event of any such ~~Proceeding is brought~~ claim, action, suit, proceeding or ~~threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time)~~investigation, (i) Parent, Holding Company and Holdings shall cause the ~~Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person~~Surviving Corporation to, ~~and Parent~~ and the Surviving ~~Company shall~~ Corporation shall, pay ~~all reasonable~~ the fees and expenses of ~~such~~ counsel ~~for~~ selected by the Indemnified ~~Persons as~~ Party, promptly as after statements therefor are received, and otherwise advance to such Indemnified Party upon request reimbursement of documented expenses reasonably incurred, and (ii) Parent, Holding Company and Holdings shall cause the Surviving ~~Company shall use its reasonable best efforts to assist~~ Corporation to, and the Surviving Corporation shall, cooperate in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable . (~~which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for~~ c) Parent, ~~Surviving Company, the~~ Holding Company ~~or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (~~and ~~Parent~~ Holdings shall cause the Surviving ~~Company not~~ Corporation to~~) settle~~ , and the Surviving Corporation shall, maintain a policy or ~~compromise or consent~~ policies of officers’ and directors’ liability insurance and fiduciary liability insurance for acts and omissions occurring prior to the ~~entry~~ Effective Time (“D&O Insurance”) from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with coverage in amount and scope at least as favorable as the Company’s existing directors’ and officers’ liability insurance and fiduciary liability insurance coverage for the period ending on the later of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (bi) ~~For a period of~~ six (6) years ~~following~~ and one (1) month after the Effective Time and (ii) the applicable statute of limitations for such acts and omissions; provided, however, that in lieu of such coverage, the Surviving Corporation may substitute a prepaid “tail” policy for such coverage, which it may cause the Company to obtain prior to the Closing. (d) In determining whether an Indemnified Party is entitled to indemnification under Section 5.06(a), if requested by such Indemnified Party, such determination shall be made in a written opinion by independent counsel mutually acceptable to Parent and the Indemnified Party, which counsel shall not have, at the time of such determination, otherwise performed services for the Surviving Corporation or Parent or their respective Subsidiaries or affiliates during the preceding three (3) years. (e) If Parent, Holding Company, Holdings or the Surviving Corporation or any of their respective successors or assigns shall (i) consolidate with or merge into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provisions shall be made so that the successors and assigns of Parent, Holding Company, Holdings or the Surviving Corporation, as the case may be, shall assume all of the obligations of Parent, Holding Company, Holdings and the Surviving Corporation set forth in this Section 5.06. (f) The rights of each Indemnified Party under this Section 5.06 shall be in addition to any right such person might have under the Charter Documents of the Company or the similar organizational documents of any of its Subsidiaries, or under applicable Law (including the DGCL), or under any agreement of any Indemnified Party with the Company or its Subsidiaries. The provisions of this Section 5.06 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their respective heirs and representatives. (g) The obligations of Parent, Holding Company, Holdings and the Surviving Corporation under this Section 5.06 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 5.06 applies without the written consent of such affected indemnitee (it being expressly agreed that the indemnitees to whom this Section 5.06 applies shall be third-party beneficiaries of this Section 5.06). (h) The Company (or, after the Effective Time, ~~Parent and~~ the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (cCorporation) ~~To the extent permitted by applicable Law, Parent and the Surviving Company~~ shall indemnify any Indemnified ~~Person~~ Party against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in this Section ~~6.4(a)~~5.06, relating to the enforcement of such Indemnified ~~Person~~Party’s rights under this Section ~~6.4~~ 5.06 or under ~~any Organizational~~ the Charter Documents ~~of the Company~~ or ~~any of its Subsidiaries, any employment agreement or~~ existing indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior agreements. Any amounts due pursuant to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time; provided, however, that Parent preceding sentence shall ~~not~~ be ~~required to pay an annual premium for the D&O Insurance in excess of (for any one year) 150% of the annual premium paid~~ payable upon request by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amountIndemnified Party. (e) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section 6.4 are intended to be for the benefit of, and shall be enforceable by, the parties and each Person entitled to indemnification, exculpation, insurance coverage or expense advancement or any other right pursuant to this Section 6.4, and his, her or its heirs and representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4.

Appears in 2 contracts

Samples: Merger Agreement (Northwestern Corp), Merger Agreement (Northwestern Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) From and after the Effective Time, Parent ~~agrees~~ shall, and shall cause the Surviving Corporation to, indemnify and hold harmless, to the fullest extent that ~~all rights existing~~ the Company would be permitted to do so, by applicable Law, each present and former (determined as of the ~~date~~ Effective Time) director or officer of ~~this Agreement~~ the Company and its Subsidiaries and any person who, prior to ~~indemnification~~or at the Effective Time, ~~advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees~~ served at the request of the Company or any of its Subsidiaries as ~~provided~~ a director or officer of another person in ~~the Organizational Documents of~~ which the Company or any of its Subsidiaries has an equity investment, in each case, when acting in such ~~Subsidiary~~capacity (collectively, the “Company Indemnified Parties”) against any ~~employment agreement~~ costs or ~~indemnification agreement~~ expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in ~~effect on the date hereof~~ connection with any Action or ~~otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms~~any other threatened or actual claim, ~~and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing~~action, ~~from and~~ suit, proceeding or investigation, whether civil, criminal, administrative or investigative, whether arising before or after the Effective Time, ~~Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now~~arising in whole or in part out of, or ~~has been at any time prior to~~ pertaining to, (i) the ~~date of this Agreement~~ fact that such person is or ~~who becomes prior to the Effective Time~~was a director, ~~a director~~ officer or ~~officer~~ fiduciary of the Company or any of its Subsidiaries or is or was serving at the request of the Company or ~~any of~~ its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid person in ~~settlement of, or incurred in connection with any threatened or actual Proceeding to~~ which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries has an equity investment or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) ~~the Surviving Company shall use its reasonable best efforts~~ matters existing or occurring at or prior to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, ~~Parent~~ including matters, acts or omissions occurring in connection with the approval of this Agreement and the ~~Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents~~ consummation of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnificationtransactions contemplated by this Agreement, ~~exculpation~~ and ~~expense advancement except to the extent required by applicable Law.~~ Parent shall, and shall cause the Surviving ~~Company and its Subsidiaries~~ Corporation to, ~~fulfill and honor any indemnification, expense advancement or exculpation agreements between~~ also advance expenses as incurred in connection therewith by such Company Indemnified Party to the ~~Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the~~ fullest extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as ; provided ~~in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of~~ that the Company ~~or any~~ Indemnified Party to whom expenses are advanced provides an undertaking (in a reasonable and customary form) to repay such advances if it is determined in a final, non-appealable judgment of ~~its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether~~ a Chosen Court that such Company Indemnified ~~Person~~ Party is ~~ultimately determined to be~~ not entitled to indemnification ~~hereunder or thereunder~~hereunder. (db) ~~Parent and~~ Subject to the ~~Surviving Company shall put in place~~following sentence, ~~and Parent shall fully prepay immediately~~ prior to the Effective Time, Parent shall, and shall cause the Surviving Corporation to, obtain and fully pay the premium for “tail” insurance policies for the extension of (~~collectively~~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, ~~the “D&O Insurance”) with~~ in each case, for a claims reporting or discovery period of ~~at least~~ six (6) years from and after the Effective Time (the “Tail Period”) from an one (1) or more insurance ~~carrier~~ carriers with the same or better credit rating as the Company’s ~~current~~ insurance carrier as of the date of this Agreement with respect to directors’ and officers’ liability ~~insurance,~~ insurance and fiduciary liability insurance with terms, conditions, retentions and ~~employment practices~~ limits of liability ~~insurance in an amount and scope~~ that are at least as favorable to the insureds as the Company’s existing policies with respect to ~~matters, acts or omissions~~ matters existing or occurring at or prior to the Effective ~~Time~~Time (including in connection with this Agreement or the Merger); provided, however, that Parent shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of three-hundred percent (~~for any one year~~300%) ~~150%~~ of the aggregate annual premium paid as of the date hereof by the Company for such insurance as (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, in Parent’s good faith determination, policies of insurance that provide the maximum coverage available at an annual premium equal to the Premium Cap. In lieu of the ~~date~~ foregoing, the Company, in consultation with, but only upon the consent of, Parent, may (and, at the request of ~~this Agreement; and provided~~Parent, ~~further, that if~~ the ~~annual premiums of such insurance coverage exceed such amount, Parent~~ Company shall ~~be obligated to~~ use its reasonable best efforts to) obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six (6)-year “tail” policy under the Company’s existing directors and officers insurance policy 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, ~~for a cost~~ in the aggregate, does not ~~exceeding such amount~~exceed the Premium Cap. (ec) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 6.6 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which a Company Indemnified Party is entitled, whether pursuant to Law, contract or otherwise. For the avoidance of doubt, to the ~~Indemnified Persons under~~ extent required by any agreement previously entered into by the Company in connection with a merger, acquisition or other business combination, the provisions of this Section ~~6.4 are in addition~~ 6.6 shall apply to ~~any rights such Indemnified Persons may have under the Organizational Documents~~ directors, officers, employees and fiduciaries of predecessor entities previously acquired by the Company or any of its Subsidiaries. (d) The obligations of the Surviving Corporation, ~~or under any applicable contracts or Law.~~ Parent and the Company under this Section 6.6 shall not be terminated or modified after the Effective Time in a manner so as to adversely affect any Company Indemnified Party or any other person entitled to the benefit of this Section 6.6 without the prior written consent of the affected Company Indemnified Party. In the event that the Surviving ~~Company~~ Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall ~~pay~~ not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all ~~expenses~~or a majority of its properties and assets to any person, ~~including attorneys’ fees~~then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may ~~be incurred by any Indemnified Person in enforcing~~ be, shall succeed to the ~~indemnity and other~~ obligations ~~provided~~ set forth in this Section ~~6.4~~6.6. (e) During the Tail Period, all rights to indemnification and exculpation 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 Company Indemnified Party as provided in the Company Charter, the Company Bylaws or any organizational documents of any Company Subsidiary or any indemnification agreement between such Company Indemnified Party and the Company or a Company Subsidiary, in each case, as in effect on the date of this Agreement, shall survive the Effective Time unchanged and shall not be amended, restated, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Company Indemnified Party.

Appears in 2 contracts

Samples: Merger Agreement (Fiserv Inc), Merger Agreement (First Data Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, ~~Parent and~~ the Surviving Company ~~shall, jointly~~ and ~~severally, indemnify, defend~~ Purchaser shall indemnify and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each caseharmless, to the ~~fullest~~ full extent ~~permitted~~ provided under ~~applicable Law~~ the Company Articles, the Company Code, and any indemnification agreement between Company and any officer or director existing on June 1, 2021 (~~and Parent and the Surviving Company shall, jointly and severally, pay~~ including advancement of expenses ~~incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person~~ as incurred) to the ~~fullest~~ extent permitted under applicable Law~~). Without limiting the foregoing~~, ~~in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time)~~including specifically 12 C.F.R. Part 359, ~~(i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person,~~ each present and ~~Parent~~ former director and ~~the Surviving Company shall pay all reasonable fees and expenses~~ officer of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries ~~to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any~~ as of ~~its Subsidiaries and any of its directors, officers or employees existing immediately prior~~ the Effective ~~Time.~~ Time (cin each case, when acting in such capacity) ~~To the extent permitted by applicable Law~~(each, ~~Parent and the Surviving Company shall indemnify~~ an “Indemnified Party”) against any ~~Indemnified Person against all reasonable~~ costs ~~and~~ or expenses (including reasonable attorneys’ ~~fees and expenses~~fees), ~~such amounts~~ 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 be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions matters existing or occurring at or prior to the Effective Time, whether asserted before or after the Effective Time, including the transactions contemplated by this Agreement; ~~provided~~provided that the Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Party is not entitled to indemnification. (b) Subject to the following sentence, ~~however~~for a period of six years following the Effective Time, Purchaser will use its commercially reasonable efforts to provide directors’ and officers’ liability insurance that ~~Parent~~ serves to reimburse the present and former officers and directors of Company or any of its Subsidiaries as of the Effective Time with respect to claims against such directors and officers arising from facts or events occurring at or before the Effective Time (including the transactions contemplated by this Agreement), which insurance will contain at least the same coverage and amounts, and contain terms and conditions no less advantageous to the Indemnified Party as that coverage currently provided by Company; provided that in no event shall ~~not~~ Purchaser be required to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~200% of the annual ~~premium~~ premiums paid ~~by the Company for such insurance~~ as of the date ~~of this Agreement~~hereof by Company for any such insurance (the “Premium Cap”); ~~and provided,~~ 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 ~~premiums~~ premium equal to the Premium Cap. At the option of Purchaser, in consultation with Company, prior to the Effective Time and in lieu of the foregoing, Purchaser or Company may purchase a tail policy for directors’ and officers’ liability insurance on the terms described in the prior sentence (including the Premium Cap) and fully pay for such ~~insurance coverage exceed such amount, Parent shall be obligated to obtain a~~ policy ~~with the greatest coverage available, with respect to facts, acts, events or omissions occurring~~ prior to the Effective Time~~, for a cost not exceeding such amount~~. (ec) ~~In the event~~ Any Indemnified Party wishing to claim indemnification under Section 6.6(a), upon learning of any claim, action, suit, proceeding or investigation described thereunder, will promptly notify Purchaser; provided that ~~Parent, the Surviving Company or any Subsidiary of the Surviving Company, or any of their respective successors or assigns, (i) consolidates with or merges into any other Person and shall~~ failure to so notify will not be the continuing or surviving company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume affect the obligations ~~set forth in this~~ of Purchaser under Section ~~6.4.~~ 6.6(a) unless and to the extent that Purchaser is actually prejudiced as a consequence. (d) The provisions of this Section ~~6.4~~ 6.6 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ If Purchaser or any of its ~~Subsidiaries~~successors or assigns shall consolidate with or merge into any other entity and shall not be the continuing or surviving entity of such consolidation or merger or shall transfer all or substantially all of its assets to any other entity, ~~or under any applicable contracts or Law. Parent~~ then and in each case, proper provision shall be made so that the ~~Surviving Company~~ successors and assigns of Purchaser shall ~~pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing~~ assume the ~~indemnity and other~~ obligations ~~provided~~ set forth in this Section ~~6.4~~6.6.

Appears in 2 contracts

Samples: Merger Agreement (Farmers National Banc Corp /Oh/), Merger Agreement (Cortland Bancorp Inc)

Indemnification; Directors’ and Officers’ Insurance. (a) Each of the Surviving Corporation and Parent agrees that all ~~rights~~ rights, existing as of the date ~~of this Agreement~~ hereof, to indemnification, advancement of expenses and exculpation from ~~Indemnified Liabilities~~ liabilities for acts or omissions occurring at or prior to the Effective Time in favor of the current ~~and/or~~ or former directors, officers or employees of the Company or any of its Subsidiaries as provided in ~~the Organizational Documents~~ their respective certificates of incorporation or by-laws (or comparable organizational documents) or in any indemnification, employment or other similar agreements of the Company or any ~~such Subsidiary~~of its Subsidiaries set forth in Schedule 7.7 of the Company Disclosure Letter, ~~any employment agreement or indemnification agreement~~ in each case as in effect on the date ~~hereof or otherwise (which~~ of this Agreement, shall ~~be assumed by Parent and the Surviving Company) will~~ continue in full force and effect in accordance with their terms~~, and Parent will cause the Surviving Company to perform its respective obligations thereunder~~. ~~Without limiting the foregoing, from~~ From and after the Effective Time, ~~Parent and~~ the Surviving ~~Company shall, jointly and severally, indemnify, defend~~ Corporation shall indemnify and hold harmless each ~~Person~~ individual who is ~~now, or has been at any time prior to~~ as of the date of this ~~Agreement~~ Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company of any of its Subsidiaries as a director or officer of another Person (all of the foregoing, collectively, the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (“Losses”), incurred or arising in connection with any claim, action, investigation, suit or proceeding, whether civil, criminal, regulatory, administrative or investigative (including with respect to matters existing or occurring or alleged to have existed or occurred at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust~~ Person or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission ~~occurring or existing prior to~~by such Company Indemnified Party while serving in such capacity, ~~at or after the Effective Time and~~ whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each caseTime, to the fullest extent permitted under ~~applicable Law~~ Applicable Law. In the event of any such claim, action, investigation, suit or proceeding, (~~and Parent and the Surviving~~ x) each Company ~~shall, jointly and severally, pay~~ Indemnified Party will be entitled to advancement of expenses incurred in ~~connection therewith in advance of~~ the ~~final disposition~~ defense of any such ~~Proceeding~~ claim, action, investigation, suit or proceeding from the Surviving Corporation within ten (10) Business Days of receipt by the Surviving Corporation from the Company Indemnified Party of a request therefor; provided, that any person to ~~each Indemnified Person~~ whom expenses are advanced provides an undertaking, if and only to the ~~fullest~~ extent ~~permitted under applicable Law). Without limiting~~ required by the ~~foregoing~~DGCL, ~~in the event any~~ to repay such ~~Proceeding~~ advances if it is ~~brought or threatened~~ ultimately determined that such person is not entitled to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, indemnification and (iiy) the Surviving ~~Company~~ Corporation shall ~~use its reasonable best efforts to assist~~ cooperate in the defense of any such matter. ~~With respect~~ Any Company Indemnified Party wishing to ~~any determination of whether any Indemnified Person is entitled to~~ claim indemnification ~~by Parent or Surviving Company~~ under this Section ~~6.4~~7.7, ~~such Indemnified Person~~ upon learning of any threatened or actual claim, action, suit, demand, proceeding or investigation, shall ~~have~~ promptly notify the ~~right~~ Company and, after the Effective Time, the Surviving Corporation thereof in writing; provided, that the failure promptly to ~~require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval~~ so notify in writing shall not ~~be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent,~~ affect the obligations of the Surviving ~~Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything~~ Corporation except to the ~~contrary contained in this Agreement~~extent, ~~Parent shall not (and Parent shall cause the Surviving Company not to) settle~~ if any, that it is materially prejudiced by such failure or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Persondelay. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time; provided, however, that Parent shall not be required to pay an annual premium for the D&O Insurance in excess of (for any one year) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amount. (e) In the event that ~~Parent,~~ Parent or the Surviving ~~Company or any Subsidiary of the Surviving Company,~~ Corporation or any of their ~~respective~~ successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other Person and ~~shall~~ is not be the continuing or ~~surviving company~~ 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, the Surviving Corporation shall cause proper ~~provisions shall~~ provision to be made so that the successors and assigns of ~~Parent,~~ the Surviving ~~Company or such Subsidiary of the Surviving Company, as the case may be, shall~~ Corporation assume the obligations set forth in this Section ~~6.4~~7.7. (c) For a period of six years from and after the Effective Time, the Surviving Corporation shall (i) cause to be maintained in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company or its Subsidiaries or (ii) provide substitute polices for the Company and its current and former directors and officers (and any individual who becomes an officer or director prior to the Effective Time) who are currently (or prior to the Effective Time become) covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company in either case, of not less than the amount of existing coverage and have other terms and from carriers not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time, except that in no event shall the Surviving Corporation be required to pay with respect to such insurance policies in respect of any one policy year more than 250% of the annual premium payable by the Company for such insurance for the twelve-month period ending June 30, 2019 (such 250% amount, the “Maximum Amount”), and if the Surviving Corporation is unable to obtain the insurance required by this Section 7.7 it shall obtain as much comparable insurance as possible for the years within such six-year period for an annual premium equal to the Maximum Amount, in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date, the Company may in consultation with Parent, and shall if Parent so directs, purchase a “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers (and any individual who becomes an officer or director prior to the Effective Time) who are currently (or prior to the Effective Time become) covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, if and to the extent that the same may be obtained for an amount that, in the aggregate, does not exceed, on an annual basis, the Maximum Amount. In the event the Company purchases such tail coverage, the Surviving Corporation shall cease to have any obligations under the first sentence of this Section 7.7(c). (d) The provisions of this Section ~~6.4~~ 7.7, (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and ~~shall~~ will be enforceable by, each indemnified or insured party (including the ~~parties and each Person entitled to indemnification~~Company Indemnified Parties), ~~exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and ~~representatives. The rights of the Indemnified Persons under this Section 6.4~~ (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any ~~rights~~ such ~~Indemnified Persons~~ Person may have ~~under the Organizational Documents of the Company~~ by contract or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4otherwise.

Appears in 2 contracts

Samples: Merger Agreement (Investment Technology Group, Inc.), Merger Agreement (Virtu Financial, Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing as~~ In the event of ~~the date of this Agreement to indemnification~~any threatened or actual claim, ~~advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors~~action, ~~officers~~ suit, proceeding or ~~employees of the Company~~ investigation, whether civil, criminal or ~~any of its Subsidiaries as provided in the Organizational Documents of the Company or~~ administrative (a “Claim”), including any such ~~Subsidiary,~~ Claim in which any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person individual who is now, or has been at any time prior to the date of this ~~Agreement~~ Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise~~ person (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified LiabilitiesParties”), ~~including all Indemnified Liabilities~~ is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining ~~to,~~ to (i) the fact that he or she is or was a director or officer of the Company or any of its Subsidiaries prior to the Effective Time or (ii) this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance any of the ~~final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing~~transactions contemplated by this Agreement, ~~in the event any such Proceeding is brought~~ whether asserted or ~~threatened to be brought against any Indemnified Persons (whether~~ arising before or after the Effective Time, the parties shall cooperate and use their best efforts to defend against and respond thereto. All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of any Indemnified Party as provided in their respective certificates or articles of incorporation or by-laws (or comparable Organizational Documents), ~~(i)~~ and any existing indemnification agreements set forth in Section 6.6 of the ~~Indemnified Persons may retain~~ Company Disclosure Schedule, shall, notwithstanding that the ~~Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person~~separate corporate existence of the Company shall cease as of the Effective Time, ~~and Parent and~~ survive the Merger as a contractual obligation of the Buyer as the Surviving Company and shall ~~pay all reasonable fees~~ continue in full force and ~~expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received~~effect in accordance with their terms, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be ~~unreasonably withheld~~ amended, repealed or ~~delayed)~~otherwise modified in any manner that would adversely affect the rights thereunder of such individuals for acts or omissions occurring at or prior to the Effective Time or taken at the request of Buyer pursuant to Section 6.7 hereof, ~~and who has not otherwise performed material services for Parent,~~ it being understood that nothing in this sentence shall require any amendment to the certificate of incorporation or by-laws of the Buyer as the Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) ~~For a period of six (6) years following~~ From and after the Effective Time, ~~Parent and~~ Buyer, as the Surviving Company ~~shall not amend, repeal or otherwise modify any provision~~ in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnificationMerger, ~~exculpation and expense advancement except~~ shall to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the fullest extent permitted by applicable ~~Law~~law, ~~Parent~~ indemnify, defend and ~~the Surviving Company shall indemnify any~~ hold harmless, and provide advancement of expenses to, each Indemnified ~~Person~~ Party against all ~~reasonable costs and expenses (including reasonable attorneys’ fees and~~ losses, claims, damages, costs, expenses), liabilities or judgments or amounts that are paid in settlement of or in connection with any Claim based in whole or in part on or arising in whole or in part out of the fact that such ~~amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4~~ person is or ~~under any Organizational Documents~~ was a director or officer of the Company or any of its Subsidiaries, and pertaining to any ~~employment agreement~~ matter existing or ~~indemnification agreement in effect on the date hereof~~ occurring, or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, any acts or omissions ~~existing or occurring~~ occurring, at or prior to the Effective Time, whether asserted or claimed prior to, or at or after, 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) or taken at the request of Buyer pursuant to Section 6.7 hereof. (c) Buyer shall cause the individuals serving as officers and directors of the Company or any of its Subsidiaries immediately prior to the Effective Time to be covered for a period of six years from the Effective Time by the directors’ and officers’ liability insurance policy maintained by the Company through the purchase of so-called “tail” insurance (provided that Buyer 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 acts or omissions occurring prior to the Effective Time that were committed by such officers and directors in their capacity as such. Immediately prior to the Effective Time, the Company shall pay to Buyer the cost of obtaining such insurance for the entire six year period referred to above; provided, however, that ~~Parent~~ if Company does not have sufficient funds to pay to Buyer all or any part of the cost of obtaining such insurance for the entire six year period referred to above or such funds are not sufficient to maintain such insurance for the entire six year period referred to above, then the Buyer shall ~~not~~ be obligated to pay for, obtain and maintain such insurance. In connection with the foregoing, neither Company nor Buyer shall be required to ~~pay an annual premium~~ expend in the aggregate for the ~~D&O Insurance~~ entire six year period referred to above amount in excess of ~~(for any one year) 150~~300% of the annual ~~premium~~ premiums currently paid by the Company for such insurance (“Insurance Amount”). If Buyer is unable to maintain such policy (or such substitute policy) as a result of the ~~date of this Agreement; and provided~~preceding sentence, ~~further, that if the annual premiums of such~~ Buyer shall obtain as much comparable insurance ~~coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time,~~ as is available for ~~a cost not exceeding such amount~~Insurance Amount. (ed) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 6.6 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4.

Appears in 2 contracts

Samples: Merger Agreement (Prospect Capital Corp), Merger Agreement (Patriot Capital Funding, Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing~~ For a period of six years after the Effective Time, the provisions with respect to indemnification, exculpation and advancement of expenses set forth in the certificate of incorporation and by-laws of the Company as of in effect on the date of this Agreement (true, correct and complete copies of which have been made available to ~~indemnification~~Parent) shall not be amended, ~~advancement~~ repealed or otherwise modified in any manner that would adversely affect the rights thereunder of ~~expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors,~~ individuals who at any time prior to the Effective Time were directors or officers ~~or employees~~ of the Company in respect of actions or ~~any of its Subsidiaries as provided in~~ omissions occurring at or prior to the ~~Organizational Documents of~~ Effective Time (including without limitation the ~~Company or any~~ transactions contemplated by this Agreement), unless such ~~Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise~~ modification is required by law. (~~which shall be assumed by Parent and the Surviving Company~~b) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, Parent ~~and~~ shall cause the Surviving ~~Company shall, jointly~~ Corporation and ~~severally~~its successors to, indemnify, defend and hold harmless each ~~Person~~ person who is now, or has been at any time prior to the date ~~of this Agreement~~ hereof or who becomes prior to the Effective Time, a an officer or director ~~or officer~~ of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the ~~“Indemnified Persons”~~"Covered Parties") against ~~and from~~ all losses, claims, damages, costs, ~~fines, penalties,~~ expenses (including reasonable attorneys~~’ and other professionals’~~ ' fees and expenses), ~~liabilities,~~ liabilities or judgments ~~and~~ or amounts that are paid in settlement ~~of,~~ with the approval of the indemnifying party (which approval shall not be unreasonably withheld or delayed) incurred in connection with any threatened or actual ~~Proceeding to which such Indemnified Person is~~action, ~~was~~ suit or ~~becomes a party or is otherwise involved (including as a witness) based,~~ proceeding based in whole or in ~~part,~~ part on or ~~arising,~~ arising in whole or in ~~part,~~ part out of the fact that such ~~Person~~ person is or was ~~a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as~~ a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the ~~Effective Time and whether asserted or claimed prior to, at or after the Effective Time~~ Company (“"Indemnified Liabilities”"), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, ~~or pertaining to,~~ this Agreement or the ~~Transactions~~transactions contemplated hereby, in each case, to the ~~fullest~~ full extent that a corporation is permitted under ~~applicable Law (and Parent and~~ the ~~Surviving Company shall~~DGCL to indemnify its own directors or officers, ~~jointly and severally, pay expenses incurred in connection therewith in advance of~~ as the ~~final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law)~~case may be. ~~Without limiting the foregoing, in~~ In the event any such ~~Proceeding~~ claim, action, suit, proceeding or investigation is ~~brought or threatened to be~~ brought against any ~~Indemnified Persons (whether arising before or after~~ Covered Party, the ~~Effective Time)~~indemnifying party shall assume and direct all aspects of the defense thereof, ~~(i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person~~including settlement, and ~~Parent and~~ the ~~Surviving Company~~ Covered Party shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist cooperate in the vigorous defense of any such matter. ~~With respect~~ The Covered Party shall have a right to participate in (but not control) the defense of any ~~determination~~ such matter with its own counsel and at its own expense. Notwithstanding the right of ~~whether any Indemnified Person is entitled~~ the indemnifying party to ~~indemnification by Parent~~ assume and control the defense of such litigation, claim or ~~Surviving Company under this Section 6.4~~proceeding, such ~~Indemnified Person~~ Covered Party shall have the right to ~~require that~~ employ separate counsel and to participate in the defense of such ~~determination be made by special~~litigation, ~~independent legal~~ claim or proceeding, and the indemnifying party shall bear the fees, costs and expenses of such separate counsel ~~selected~~ and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Covered Party if (i) the use of counsel chosen by the ~~Indemnified Person and approved~~ indemnifying party to represent such Covered Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by ~~Parent~~ counsel that there may be legal defenses available to it or ~~Surviving Company~~to other Covered Parties which are different from or in addition to those available to the indemnifying party, ~~as applicable~~ or (iii) the indemnifying party shall not have employed counsel satisfactory to such Covered Party, in the exercise of the Covered Party's reasonable judgment, to represent such Covered Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The indemnifying party shall not settle any such matter unless (i) the Covered Party gives prior written consent, which ~~approval~~ shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Covered Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Covered Party and the settlement discharges all rights against Covered Party with respect to such matter. In no event shall the indemnifying party be liable for any settlement effected without its prior written consent. Any Covered Party wishing to claim indemnification under this Section 6.8(b), upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the indemnifying party from any liability which it may have under this Section 6.8(b) except to the extent such failure materially prejudices such indemnifying party), and ~~who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything~~ shall deliver to ~~the contrary contained in this Agreement,~~ Parent ~~shall not (~~and ~~Parent shall cause~~ the Surviving ~~Company not to~~Corporation the undertaking contemplated by Section 145(e) ~~settle or compromise or consent to~~ of the ~~entry of~~ DGCL. The Covered Parties as a group will be represented by a single law firm (plus no more than one local counsel in any ~~judgment or otherwise seek termination~~ jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any ~~Proceeding~~ significant issue between the positions of any two or more Covered Parties. The rights to indemnification under this Section 6.8(b) shall continue in full force and effect for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time; provided, however, that ~~Parent~~ all rights to indemnification in respect of any Indemnified Liabilities asserted or made within such period shall ~~not be required to pay an annual premium for~~ continue until the ~~D&O Insurance in excess of (for any one year) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums~~ disposition of such ~~insurance coverage exceed such amount~~Indemnified Liabilities. (c) For a period of six years after the Effective Time, Parent shall cause to be ~~obligated to obtain a policy with~~ maintained in effect policies of directors' and officers' liability insurance, for the ~~greatest~~ benefit of those persons who are covered by the Company's directors' and officers' liability insurance policies at the Effective Time, providing coverage ~~available,~~ with respect to ~~facts, acts, events or omissions~~ matters occurring prior to the Effective ~~Time~~Time that is at least equal to the coverage provided under the Company's current directors' and officers' liability insurance policies, to the extent that such liability insurance can be maintained at an annual cost to Parent not greater than 200 percent of the premium for the current Company directors' and officers' liability insurance; provided that if such insurance cannot be so maintained at such cost, Parent shall maintain as much of such insurance as can be so maintained at a cost ~~not exceeding~~ equal to 200 percent of the current annual premiums of the Company for such ~~amount~~insurance. (ed) In the event that ~~Parent,~~ Parent or the Surviving ~~Company or any Subsidiary of the Surviving Company,~~ Corporation or any of ~~their respective~~ its successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving ~~company~~ 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~~person, then, and in each such case, proper ~~provisions~~ provision shall be made so that the successors ~~and~~ or assigns of ~~Parent,~~ Parent or the Surviving ~~Company or such Subsidiary of the Surviving Company, as the case may be,~~ Corporation shall ~~assume~~ succeed to the obligations set forth in Section 6.7 and this Section 6.4. The provisions of this Section 6.4 are intended to be for the benefit of, and shall be enforceable by, the parties and each Person entitled to indemnification, exculpation, insurance coverage or expense advancement or any other right pursuant to this Section 6.4, and his, her or its heirs and representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.46.8.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Niner Acquistion Inc), Merger Agreement (Nielsen Media Research Inc)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing as~~ For a period of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise six (~~which shall be assumed by Parent and the Surviving Company~~6) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and years after the Effective Time, ~~Parent and~~ the Surviving ~~Company shall, jointly and severally, indemnify, defend~~ Corporation shall indemnify and hold ~~harmless each Person who is now~~harmless, ~~or has been at any time prior~~ to the ~~date~~ fullest extent permitted by applicable law, each present and former director, officer or employee of ~~this Agreement or who becomes prior to the Effective Time, a director or officer of the Company or any of~~ Anchor and its Subsidiaries ~~or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation~~(in each case, ~~partnership~~when acting in such capacity) (collectively, ~~limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (~~the “Anchor Indemnified ~~Persons~~Parties”) against ~~and from all losses~~any costs or expenses (including reasonable attorneys’ fees), ~~claims, damages, costs~~judgments, fines, ~~penalties~~losses, ~~expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of,~~ damages or liabilities incurred in connection with any threatened or actual ~~Proceeding to which such Indemnified Person is~~claim, ~~was~~ action, suit, proceeding or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacityinvestigation, whether ~~pertaining to any act~~ civil, criminal, administrative or ~~omission occurring or existing prior to~~investigative, at whether arising before or after the Effective ~~Time and whether asserted or claimed prior to~~Time, ~~at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or~~ arising in whole or in part out of, or pertaining to, ~~this Agreement or~~ the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require fact that such ~~determination be made by special~~person is or was a director, ~~independent legal counsel selected by the Indemnified Person and approved by Parent~~ officer or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry employee of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company Anchor or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect pertaining to matters, acts or omissions 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 by this Agreement; and Old National and the Surviving Corporation shall also advance expenses as incurred by such Anchor Indemnified Party to the fullest extent permitted by applicable law; provided that the Anchor Indemnified Party to whom expenses are advanced provides an undertaking (in a reasonable and customary form) to repay such advances if it is ultimately determined that such Anchor Indemnified Party is not entitled to indemnification. (b) For a period of six (6) 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 Anchor (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 insured) with respect to claims against the present and former officers and directors of Anchor 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, however, that ~~Parent~~ the Surviving Corporation shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~300% of the aggregate annual premium paid ~~by the Company for such insurance~~ as of the date ~~of this Agreement; and provided, further, that if the annual premiums of~~ hereof by Anchor 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 provide the maximum coverage ~~exceed such amount~~available at an annual premium equal to the Premium Cap. In lieu of the foregoing, ~~Parent~~ Anchor, in consultation with Old National, may (and at the request of Old National, Anchor shall ~~be obligated to~~ use its reasonable best efforts to) obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year “tail” policy under Anchor’s existing directors and officers insurance policy 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, ~~for a cost~~ in the aggregate, does not ~~exceeding such amount~~exceed the Premium Cap. (ec) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 6.8 shall survive the Closing and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Anchor Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of~~ If the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ Surviving Corporation or any of its ~~Subsidiaries~~successors or assigns shall consolidate with or merge into any other entity and not be the continuing or surviving entity of such consolidation or merger, transfer all or ~~under~~ substantially all of its assets or deposits to any ~~applicable contracts~~ other entity or ~~Law. Parent and~~ engage in any similar transaction, then in each case, the Surviving ~~Company shall pay all expenses, including attorneys’ fees,~~ Corporation will cause proper provision to be made so that ~~may be incurred by any Indemnified Person in enforcing~~ the ~~indemnity~~ successors and ~~other~~ assigns of the Surviving Corporation will expressly assume the obligations ~~provided~~ set forth in this Section ~~6.4~~6.8. (d) The obligations of the Surviving Corporation, Old National and Anchor under this Section 6.8 shall not be terminated or modified in a manner so as to adversely affect any Anchor Indemnified Party or any other person entitled to the benefit of this Section 6.8 without the prior written consent of the affected Anchor Indemnified Party.

Appears in 2 contracts

Samples: Merger Agreement (Anchor Bancorp Wisconsin Inc), Merger Agreement (Old National Bancorp /In/)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, Parent ~~and~~ shall cause the Surviving Company ~~shall~~to, ~~jointly and severally, indemnify, defend~~ indemnify and hold harmless each ~~Person who is now~~present and former director and officer of the Company determined as of the Effective Time (the “Indemnified Parties”), against any costs or ~~has been at~~ expenses (including reasonable and documented attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any ~~time prior to the date of~~ claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (a “Proceeding”) (including this Agreement and the transactions and actions contemplated hereby)), arising out of acts or ~~who becomes~~ omissions occurring or alleged to have occurred at or prior to the Effective ~~Time,~~ Time (including this Agreement and the transactions and actions contemplated hereby)) in connection with such Indemnified Party serving as a director or officer of the ~~Company~~ Company, or, while a director or ~~any~~ officer of ~~its Subsidiaries or~~ the Company, is or was serving at the specific request of the Company ~~or any of its Subsidiaries~~ as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of ~~the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of~~ another ~~corporation~~Person, ~~partnership~~in each case, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each caseTime, to the fullest extent ~~permitted~~ that the Company would have been required to under Delaware Law, any applicable ~~Law~~ written indemnification agreement to which such Person is a party in effect as of the date of this Agreement (a “Company Indemnification Agreement”) (any such Company Indemnification Agreement having been provided to Parent), or the Company Charter or Company Bylaws in effect on the date of this Agreement to indemnify such Person. The Surviving Company shall also advance reasonable and documented legal expenses as incurred by Indemnified Parties in defending any proceeding to the same extent as such Indemnified Parties are entitled to advancement of expenses as of the date of this Agreement by the Company pursuant to the Company Charter, Company Bylaws in effect on the date of this Agreement or any Company Indemnification Agreement to which such Person is a party; provided that the Person to whom expenses are advanced shall provide a written undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification). Parent ~~and~~ shall ensure that the organizational documents of the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years ~~following~~ from and after the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and ~~expense advancement except~~ former directors and officers of the Company and its Subsidiaries than are presently set forth in the Company Charter and Company Bylaws. Any right of indemnification of an Indemnified Party pursuant to this Section 5.12 shall not be amended, repealed or otherwise modified at any time in a manner for a period of six (6) years from and after the Effective Time that would adversely affect the rights of such Indemnified Party as provided herein. (a) Prior to the ~~extent required by applicable Law.~~ Effective Time, the Company shall and, if the Company is unable to, Parent ~~shall, and~~ shall cause the Surviving Company ~~and its Subsidiaries~~ as of the Effective Time to, ~~fulfill~~ obtain and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully ~~prepay immediately prior to the Effective Time,~~ pay for “tail” insurance policies ~~(collectively, the “D&O Insurance”)~~ with a ~~claims~~ claim reporting period of at least six (6) years from and after the Effective Time ~~from an~~ the Company’s current insurance carrier or carriers (or carriers with the same or better credit rating as the Company’s current insurance carrier or carriers) with respect to directors’ and officers’ liability insurance, ~~fiduciary liability insurance and~~ employment practices liability insurance ~~in an amount~~ and ~~scope~~ fiduciary liability insurance with terms and conditions and limits of liability at least as favorable as the Company’s existing policies with respect to ~~matters~~claims made after the Effective Time arising from acts, ~~acts~~ errors or omissions existing or occurring at or prior to the Effective ~~Time~~Time (including in connection with this Agreement or the transactions or actions contemplated hereby); provided, ~~however,~~ however that ~~Parent~~ in no event shall ~~not be required to pay an annual~~ the Company expend for such policies a one-time premium ~~for the D&O Insurance~~ amount in excess of three hundred percent (~~for any one year~~300%) ~~150%~~ of the annual ~~premium~~ premiums currently paid by the Company for such insurance ~~as of the date of this Agreement; and~~ provided, ~~further,~~ further that if the ~~annual premiums of~~ premium for such insurance coverage ~~exceed~~ exceeds such amount, ~~Parent~~ the Surviving Company shall ~~be obligated to~~ obtain ~~a policy~~ policies with the greatest coverage ~~available, with respect to facts, acts, events or omissions occurring prior to the Effective Time,~~ available for a cost not exceeding such amount. (eb) ~~In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company,~~ If Parent or any of ~~their respective~~ its successors or ~~assigns,~~ assigns (i) ~~consolidates~~ shall consolidate with or ~~merges~~ merge into any other ~~Person~~ corporation or entity and shall not be the continuing or surviving ~~company~~ corporation or entity of such consolidation or merger or (ii) ~~transfers~~ shall transfer all or substantially all of its properties and assets to any ~~Person~~individual, ~~then~~corporation or other entity, then and in each such ~~case,~~ case proper provisions shall be made so that the successors and assigns of ~~Parent, the Surviving Company or such Subsidiary~~ Parent shall assume all of the ~~Surviving Company, as the case may be, shall assume the~~ obligations of Parent set forth in this Section ~~6.4.~~ 5.12. (c) The provisions of this Section ~~6.4~~ 5.12 are intended to be for the benefit of, and shall be enforceable by, each of the ~~parties and each Person entitled to indemnification~~Indemnified Parties, ~~exculpation, insurance coverage or expense advancement or any other right pursuant to this Section 6.4, and his, her or its~~ their heirs and their representatives. The rights of ~~the~~ each Indemnified ~~Persons~~ Party under this Section ~~6.4 are~~ 5.12 shall be in addition to any rights such ~~Indemnified Persons~~ individual may have under Delaware Law, any Company Indemnification Agreement to which such Person is a party, the ~~Organizational Documents of~~ Company Charter or the Company Bylaws. (d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its ~~Subsidiaries~~Subsidiaries for any of their respective directors, officers or ~~under any applicable contracts or Law. Parent~~ other employees, it being understood and agreed that the ~~Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations~~ indemnification provided for in this Section ~~6.4~~5.12 is not prior to or in substitution for any such claims under such policies.

Appears in 2 contracts

Samples: Merger Agreement (SendGrid, Inc.), Merger Agreement (Twilio Inc)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, ~~Parent and the Surviving Company~~ Soap shall, ~~jointly and severally~~to the fullest extent permitted by applicable Law, indemnify, defend and hold ~~harmless~~ harmless, and provide advancement of expenses to, each ~~Person~~ person who is now, or has been at any time prior to the date ~~of this Agreement~~ hereof or who becomes prior to the Effective Time, a an officer or director ~~or officer~~ of ~~the Company~~ Dish or any of ~~its~~ the Dish Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified ~~Persons~~Parties”) against ~~and from~~ all losses, claims, damages, costs, ~~fines~~expenses, ~~penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities,~~ Liabilities or judgments ~~and~~ or amounts that are paid in settlement ~~of,~~ of or ~~incurred~~ in connection with any ~~threatened~~ claim, action, suit, proceeding or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities investigation based in whole or in part ~~on,~~ on or arising in whole or in part out ofof the fact that such person is or was a director or officer of Dish or any Dish Subsidiary, and pertaining to any matter existing or occurring, or ~~pertaining~~ any acts or omissions occurring, at or prior to the Effective Time whether asserted or claimed prior to, or at or after, the Effective Time (including matters, acts or omissions occurring in connection with the approval of this Agreement or and the ~~Transactions, in each case,~~ consummation of the transactions contemplated hereby) to the ~~fullest~~ same extent ~~permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any~~ such ~~Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought~~ persons are indemnified or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to ~~require~~ advancement of expenses as of the date hereof by Dish pursuant to the Dish Certificate of Incorporation, the Dish Bylaws and indemnification agreements with any directors or officers of Dish and the Dish Subsidiaries that ~~such determination be~~ have been made ~~by special~~available to Soap prior to the date hereof and that are listed on Section 5.11 of the Dish Disclosure Letter. The certificate of incorporation and bylaws of the Dish Surviving Corporation shall contain provisions with respect to indemnification and advancement of expenses that are no less favorable than those set forth in the Dish Certificate of Incorporation and the Dish Bylaws on the date of this Agreement, ~~independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (~~which ~~approval~~ provisions thereafter shall not be ~~unreasonably withheld~~ amended, repealed or ~~delayed), and who has not~~ otherwise ~~performed material services for Parent, Surviving Company,~~ modified in any manner that would adversely affect the ~~Company or~~ rights of the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified PersonParties thereunder. (b) For a period of six ~~(6)~~ years ~~following~~ after the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and Soap shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement maintained in effect on the ~~date hereof or otherwise, regardless~~ current policies of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability~~ insurance ~~and employment practices liability insurance in an amount and scope~~ maintained by Dish (provided that Soap may substitute therefor policies with a substantially comparable insurer of at least ~~as favorable as~~ the ~~Company’s existing policies~~ same coverage and amounts containing terms and conditions that are no less advantageous to the insured) with respect to ~~matters, acts~~ claims arising from facts or ~~omissions existing or occurring~~ events that occurred at or ~~prior to~~ before the Effective Time; provided, however, that ~~Parent~~ Soap shall not be ~~required~~ obligated to ~~pay an~~ make annual premium payments for such insurance to the ~~D&O Insurance in excess of (for any one year) 150~~extent such premiums exceed 300% of the ~~annual premium~~ premiums paid as of the date hereof by ~~the Company~~ Dish for such insurance as set forth on Section 5.11 of the ~~date of this Agreement;~~ Dish Disclosure Letter (“Dish’s Current Premium”), and ~~provided, further, that~~ if ~~the annual~~ such premiums of for such insurance would at any time exceed 300% of Dish’s Current Premium, then Soap shall cause to be maintained policies of insurance that, in Soap’s good faith determination, provide the maximum coverage ~~exceed such amount~~available at an annual premium equal to 300% of Dish’s Current Premium. At Dish’s option, ~~Parent shall be obligated~~ in lieu of the foregoing insurance coverage, Dish may purchase prior to ~~obtain~~ the Effective Time a ~~policy with~~ six-year prepaid “tail policy” providing at least the ~~greatest~~ same coverage ~~available,~~ and amounts containing terms and conditions that are no less advantageous to the insured as the current policies of directors’ and officers’ liability insurance maintained by Dish with respect to ~~facts, acts,~~ claims arising from facts or events that occurred at or ~~omissions occurring~~ before the Effective Time. If such tail policy has been obtained by Dish prior to the Effective Time, Soap shall cause such policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Dish Surviving Corporation. If Dish does not elect to purchase such a ~~cost not exceeding such amount~~“tail policy”, Soap may, after the Effective Time and in lieu of the foregoing insurance coverage, purchase a six year “tail policy” providing at least the same coverage and amounts containing terms and conditions that are no less advantageous to the insured as the current policies of directors’ and officers’ liability insurance maintained by Dish with respect to claims arising from facts or events that occurred at or before the Effective Time. (ec) In Soap shall pay (as incurred) all expenses, including reasonable fees and expenses of counsel, that an Indemnified Person may incur in enforcing the ~~event~~ indemnity and other obligations provided for in this Section 5.11, provided, that ~~Parent, the Surviving Company or~~ any ~~Subsidiary~~ Person to whom expenses are advanced provides an undertaking to repay such advances if it is finally judicially determined by a court of ~~the Surviving Company,~~ competent jurisdiction that such Person is not entitled to indemnification. (d) If Soap or any of ~~their respective~~ its successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving ~~company~~ 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~~person, then, and in each such case, to the extent necessary, proper ~~provisions~~ provision shall be made so that the successors and assigns of ~~Parent, the Surviving Company or such Subsidiary of the Surviving Company~~Soap, as the case may be, shall assume the obligations set forth in this Section ~~6.4.~~ 5.11. (e) The provisions of this Section ~~6.4~~ 5.11 (i) are intended to be for the benefit of, and shall be enforceable by, ~~the parties and~~ each ~~Person entitled to indemnification~~Indemnified Party, ~~exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and ~~representatives. The rights of the Indemnified Persons under this Section 6.4~~ representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any ~~rights~~ such ~~Indemnified Persons~~ person may have ~~under the Organizational Documents of the Company~~ by contract or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4otherwise.

Appears in 2 contracts

Samples: Merger Agreement (Diversey Holdings, Inc.), Agreement and Plan of Merger (Sealed Air Corp/De)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing as~~ In the event of ~~the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers~~ any threatened or ~~employees of the Company or~~ actual Claim against any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person individual who is now, or has been at any time prior to the date of this ~~Agreement~~ Agreement, or who becomes prior to the Effective Time, a director or officer of ~~the Company~~ MCC or any of its Subsidiaries or who is or was serving at the request of ~~the Company~~ MCC or any of its Subsidiaries as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise~~ person (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified LiabilitiesParties”), ~~including all Indemnified Liabilities~~ based in whole or in part on, or arising in whole or in part out of, or pertaining ~~to,~~ to (i) the fact that he or she is or was a director or officer of MCC or any of its Subsidiaries prior to the Effective Time or (ii) this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance any of the ~~final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing~~transactions contemplated by this Agreement, ~~in the event any such Proceeding is brought~~ whether asserted or ~~threatened to be brought against any Indemnified Persons (whether~~ arising before or after the Effective Time, the parties shall cooperate and use their commercially reasonable efforts to defend against and respond thereto. All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time existing on the date of this Agreement in favor of any Indemnified Party as provided in their respective certificates or articles of incorporation or by-laws (or comparable Organizational Documents), and any existing indemnification agreements set forth in Section 7.6 of MCC Disclosure Schedule (i) as may be modified or amended as provided below), shall, notwithstanding that the ~~Indemnified Persons may retain~~ separate corporate existence of MCC shall cease as of the ~~Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person~~Effective Time, ~~and Parent and~~ survive the Merger as a contractual obligation of the Surviving Company and shall ~~pay all reasonable fees~~ continue in full force and ~~expenses~~ effect in accordance with their terms for a period of ~~such counsel for~~ six (6) years from the ~~Indemnified Persons as promptly as statements therefor are received~~Closing Date, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be ~~unreasonably withheld~~ amended, repealed or ~~delayed~~otherwise modified in any manner that would adversely affect the rights thereunder of such individuals for acts or omissions occurring at or prior to the Effective Time or taken at the request of SIC pursuant to Section 7.7 hereof (provided, that such existing indemnification agreements may be amended prior to the Effective Time as expressly permitted by Section 6.2 of the MCC Disclosure Schedule, if such amendments are in form reasonably acceptable to SIC), ~~and who has not otherwise performed material services for Parent,~~ it being understood that nothing in this sentence shall require any amendment to the articles or certificate of incorporation or bylaws as the Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years ~~following~~ from the ~~Effective Time~~Closing Date, ~~Parent and~~ the Surviving ~~Company~~ Company, shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the fullest extent permitted by ~~applicable~~ Applicable Law, ~~Parent~~ indemnify, defend and ~~the Surviving Company shall indemnify any~~ hold harmless, and provide advancement of expenses to, each Indemnified ~~Person~~ Party against all ~~reasonable costs and expenses (including reasonable attorneys’ fees and~~ losses, Claims, damages, costs, expenses), ~~such~~ liabilities or judgments or amounts ~~to be payable~~ that are paid in ~~advance upon request as provided~~ settlement of or in ~~Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4~~ connection with any Claim based in whole or ~~under any Organizational Documents~~ in part on or arising in whole or in part out of the ~~Company~~ fact that such person is or was a director or officer of MCC or any of its Subsidiaries, and pertaining to any ~~employment agreement~~ matter existing or ~~indemnification agreement in effect on the date hereof~~ occurring, or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, any acts or omissions ~~existing or occurring~~ occurring, at or prior to the Effective Time, whether asserted or claimed prior to, or at or after, 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) or taken at the request of SIC pursuant to Section 7.7 hereof; provided, ~~however,~~ that ~~Parent~~ the Surviving Company (i) shall not be ~~required to pay an annual premium for the D&O Insurance in excess of (~~liable for any ~~one year~~amounts paid in the settlement of any Claim without its prior written consent, which shall not be unreasonably withheld, and (ii) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to ~~obtain a policy with~~ pay the ~~greatest coverage available,~~ fees and expenses of only one counsel for all Indemnified Parties with respect to ~~facts~~any single Claim (each such counsel to be approved in advance by the Surviving Company, ~~acts~~such consent not to be unreasonably withheld) unless the Surviving Company assumes the defense of such Claim, ~~events~~ in which case it shall not be liable for any fees and expenses of counsel to the Indemnified Parties in respect of such Claim; provided that if an Indemnified Party determines in good faith that (a) the use of counsel chosen by the Surviving Company to represent such Indemnified Party would present such counsel with an actual or potential conflict, (b) the named parties in any such claim (including any impleaded parties) include both the Surviving Company and such Indemnified Party and such Indemnified Party shall conclude in good faith that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Surviving Company, (c) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, or (d) or such Indemnified Party has interests in the claim or underlying subject matter that are substantially different from or in addition to those of other Persons against whom the claim has been made or might reasonably be expected to be made, then such Indemnified Party shall be entitled to retain separate counsel (but not more than one law firm, plus, if applicable, local counsel in respect of any particular claim for all indemnitees in such Indemnified Party’s circumstances) at the Surviving Company’s expense to the extent of such counsel’s reasonable fees and expenses. (c) MCC shall, at its sole cost, cause the individuals serving as officers and directors of MCC or any of its Subsidiaries immediately at or prior to the Effective Time to be covered for a period of six years from the Effective Time by the directors’ and officers’ liability insurance policy maintained by MCC through the purchase of so-called “tail” insurance with respect to acts or omissions occurring prior to the Effective ~~Time, for a cost not exceeding~~ Time that were committed by such ~~amount~~officers and directors in their capacity as such. (ed) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 7.6 are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4.

Appears in 2 contracts

Samples: Merger Agreement (Medley Capital Corp), Merger Agreement (Sierra Income Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, each of Parent and the Surviving ~~Company~~ Corporation shall, jointly and severally, ~~indemnify, defend~~ indemnify and hold ~~harmless~~ harmless, to the fullest extent permitted under applicable Law, each ~~Person who is now~~present and former director and officer of the Company and its Subsidiaries, and each fiduciary of a Company Benefit Plan (collectively, together with such person’s heirs, executors or ~~has been at~~ administrators, the “Indemnified Parties”) against any ~~time~~ costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement incurred in connection with any actual or threatened Action, whether civil, criminal, administrative or investigative, arising out of, related to or in connection with any action or omission occurring or alleged to have occurred whether prior to ~~the date of this Agreement~~ or ~~who becomes prior to~~ at the Effective ~~Time,~~ Time (including in connection with such Indemnified Parties’ service as a director or officer of the Company or any of its Subsidiaries or is a fiduciary of a Company Benefit Plan or ~~was serving~~ services performed by such persons at the request of or for the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent benefit of the Company or ~~any of~~ its ~~Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation~~Subsidiaries), partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective ~~Time~~ Time, including, for the avoidance of doubt, in connection with (~~“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to,~~ i) the transactions contemplated by this Agreement and (ii) actions to enforce this provision or any other indemnification, exculpation or advancement right of any Indemnified Party. Without limiting the ~~Transactions~~foregoing, ~~in each case~~Parent, for a period of six (6) years from and after the Effective Time, shall, unless otherwise prohibited by applicable Law, cause the Charter and the Bylaws to contain provisions no less favorable to the ~~fullest extent permitted under applicable Law (~~Indemnified Parties with respect to indemnification, exculpation from liabilities and rights to advancement of expenses than those set forth as of the date of this Agreement in the certificate of incorporation and bylaws of the Company, which provisions shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of any Indemnified Party. In addition, from and after the Effective Time, each of Parent and the Surviving ~~Company shall, jointly~~ Corporation shall advance costs and ~~severally, pay~~ expenses (including attorneys’ fees) as incurred by any Indemnified Party promptly (and in ~~connection therewith in~~ any event within ten (10) days) after receipt by Parent of a written request for such advance ~~of the final disposition of any such Proceeding to each Indemnified Person~~ 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 (after exhausting all available appeals) that such Person is not entitled to indemnification. Any Indemnified Party wishing to claim indemnification under this Section 5.10(a)~~. Without limiting~~ , upon learning of any claim, action or proceeding in respect of which such indemnification will be sought, shall notify the ~~foregoing~~Surviving Corporation thereof in writing; provided, in that the ~~event any~~ failure to so notify the Surviving Corporation shall not affect the indemnification obligations of the Surviving Corporation or Parent under this Section 5.10(a), except to the extent such ~~Proceeding is brought or threatened~~ failure to ~~be brought against any Indemnified Persons~~ notify materially prejudices the Surviving Corporation. (~~whether arising before or after~~ b) Prior to the Effective Time), the Company shall obtain and fully pre-pay the premium for (and, following the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain with reputable and financially sound carriers) the extension of (i) the ~~Indemnified Persons may retain~~ directors’ and officers’ liability coverage of the Company’s ~~regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person,~~ existing directors’ and ~~Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received~~officers’ insurance policies, and (ii) the ~~Surviving Company shall use its reasonable best efforts to assist~~ Company’s existing fiduciary liability insurance policies (collectively, “D&O Insurance”), in each case for a claims reporting or discovery period (whichever is greater) of six (6) years from and after the ~~defense of any such matter. With~~ Effective Time with respect to any ~~determination~~ claim arising from facts or events that existed or occurred at or prior to the Effective Time with terms, conditions, retentions, coverage limits and limits of ~~whether~~ liability that are at least as favorable as the coverage provided under the Company’s existing policies in effect on the date hereof. If the Company and the Surviving Corporation for any ~~Indemnified Person is entitled~~ reason fail to ~~indemnification by Parent or Surviving Company under this Section 6.4,~~ obtain such ~~Indemnified Person shall have~~ “tail” insurance policies as of the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving CompanyEffective Time, the ~~Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement~~Surviving Corporation shall, ~~Parent shall not (~~and Parent shall cause the Surviving ~~Company not~~ Corporation to~~) settle or compromise or consent~~ , continue to ~~the entry of any judgment or otherwise seek termination with respect to any Proceeding~~ maintain in effect for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years ~~following~~ from and after the Effective ~~Time, Parent and~~ Time the ~~Surviving Company shall not amend, repeal or otherwise modify any provision~~ D&O Insurance in ~~the Organizational Documents~~ place as of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof ~~or otherwise~~with terms, ~~regardless~~ conditions, retentions, coverage limits and limits of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope~~ that are at least as favorable as the coverage provided in the Company’s existing policies ~~with respect to matters~~as of the date hereof, ~~acts~~ or ~~omissions existing or occurring at or prior to~~ the ~~Effective Time; provided~~Surviving Corporation shall, ~~however, that~~ and Parent shall ~~not~~ cause the Surviving Corporation to, purchase comparable insurance as the D&O Insurance for such six‑year period with terms, conditions, retentions and limits of liability that are at least as favorable as the coverage provided under the Company’s existing policies as of the date hereof. Notwithstanding the foregoing, (x) in no event shall the Company or the Surviving Corporation be required to ~~pay~~ expend for any such policies pursuant to this Section 5.10(b) an annual premium ~~for the D&O Insurance~~ amount in excess of ~~(for any one year) 150~~300% of the aggregate of the annual ~~premium~~ premiums currently paid by the Company for such ~~insurance as of the date of this Agreement;~~ insurance, and ~~provided, further, that~~ (y) if the annual premiums of such insurance coverage exceed such maximum amount, ~~Parent~~ the Company or the Surviving Corporation shall ~~be obligated to~~ obtain a policy with the greatest coverage ~~available, with respect to facts, acts, events or omissions occurring prior to the Effective Time,~~ available for ~~a cost not exceeding~~ such maximum amount. (ec) ~~In the event that Parent,~~ If Parent or the Surviving ~~Company or any Subsidiary of the Surviving Company,~~ Corporation or any of their ~~respective~~ successors or ~~assigns,~~ assigns shall (i) ~~consolidates~~ consolidate with or ~~merges~~ merge into any other ~~Person~~ corporation or entity and shall not be the continuing or surviving ~~company~~ corporation or entity of such consolidation or merger or (ii) ~~transfers~~ transfer all or substantially all of its properties and assets to any ~~Person~~individual, corporation or other entity, then, in each such case, proper provisions shall be made so that ~~the successors and assigns of Parent, the Surviving Company~~ such surviving or ~~such Subsidiary of the Surviving Company~~acquiring Person(s), as the case may be, shall assume all of the obligations set forth in this Section ~~6.4.~~ 5.10. (d) The provisions of this Section ~~6.4~~ 5.10 are intended to be for the benefit of, and shall be enforceable by, each of the parties and each Person entitled to indemnification, exculpation, insurance coverage or expense advancement or any other right pursuant to this Section 6.4, and his, her or its heirs and representatives. Indemnified Parties. (e) The rights of the Indemnified ~~Persons~~ Parties under this Section ~~6.4 are~~ 5.10 shall be in addition to any rights such Indemnified ~~Persons~~ Parties may have under the ~~Organizational Documents~~ certificate of incorporation or bylaws or comparable governing documents of the Company or any of its Subsidiaries, or under any applicable ~~contracts~~ Contracts or ~~Law~~Laws or otherwise. ~~Parent~~ All rights to indemnification, exculpation 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 (whether asserted or claimed prior to, at, or after the Effective Time) as provided in the certificate of incorporation or bylaws or comparable governing documents of the Company or any of its Subsidiaries or any Contract or otherwise between such Indemnified Party and the ~~Surviving~~ Company or any of its Subsidiaries shall ~~pay all expenses~~survive the Merger and continue in full force and effect (and shall be so maintained) and shall not be amended, ~~including attorneys’ fees~~repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to insurance claims under any policy that ~~may be incurred by~~ is or has been in existence with respect to the Company or any of its Subsidiaries or any Indemnified ~~Person in enforcing~~ Party, it being understood and agreed that the ~~indemnity and other obligations~~ indemnification provided for in this Section ~~6.4~~5.10 is not prior to, or in substitution for, any such claims under any such policies.

Appears in 2 contracts

Samples: Merger Agreement (Ultimate Software Group Inc), Merger Agreement (Financial Engines, Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing as of~~ From and after the ~~date of this Agreement to indemnification~~Closing, ~~advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors~~Holdco shall, ~~officers~~ or ~~employees of the Company~~ cause one or ~~any~~ more of its Subsidiaries ~~as provided in~~ to, to the ~~Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed~~ fullest extent permitted by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severallyapplicable law, indemnify, defend and hold ~~harmless~~ harmless, and provide advancement of expenses to, each ~~Person~~ person who is now, or has been at any time prior to the date ~~of this Agreement~~ hereof or who becomes prior to the ~~Effective Time~~Closing, ~~a director~~ an officer, director, member, authorized person or ~~officer~~ employee of ~~the Company~~ Hexion, Momentive or any of ~~its~~ their respective Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified ~~Persons~~Parties”) against ~~and from~~ all losses, claims, damages, costs, ~~fines~~expenses, ~~penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities,~~ liabilities or judgments ~~and~~ or amounts that are paid in settlement ~~of,~~ of or ~~incurred~~ in connection with any ~~threatened~~ claim, action, suit, proceeding or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities investigation based in whole or in part ~~on,~~ on or arising in whole or in part out ofof the fact that such person is or was a director, member, authorized person, officer or employee of Hexion, Momentive or any of their respective Subsidiaries, and pertaining to any matter existing or occurring, or ~~pertaining~~ any acts or omissions occurring, at or prior to the Closing, whether asserted or claimed prior to, or at or after, the Closing (including matters, acts or omissions occurring in connection with the approval of this Agreement or and the ~~Transactions, in each case,~~ consummation of the transactions contemplated hereby) (“Indemnified Liabilities”) to the ~~fullest~~ same extent ~~permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any~~ such ~~Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought~~ persons are indemnified or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to ~~require that such determination be made~~ advancement of expenses as of the date of this Agreement by ~~special, independent legal counsel selected by the Indemnified Person and approved by Parent~~ Hexion or ~~Surviving Company~~Momentive, as ~~applicable (which approval shall not be unreasonably withheld or delayed)~~applicable, ~~and who has not otherwise performed material services for Parent~~pursuant to such entities’ Certificate of Incorporation, ~~Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this~~ Operating Agreement, ~~Parent shall not (~~Bylaws and ~~Parent shall cause~~ indemnification agreements, if any, in existence on the ~~Surviving Company not to) settle or compromise or consent to the entry of~~ date hereof with any ~~judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement~~directors, ~~unless such settlement~~members, ~~compromise~~authorized persons, ~~consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out~~ officers and employees of such ~~Proceeding~~ entity and ~~does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person~~its Subsidiaries. (b) For a period of six ~~(6)~~ years ~~following~~ from and after the ~~Effective Time~~Closing, ~~Parent~~ Holdco, Momentive and ~~the Surviving Company~~ Hexion shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall either cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement maintained in effect on the ~~date hereof or otherwise, regardless~~ current policies of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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,~~ insurance and fiduciary liability insurance maintained by Momentive, Hexion or their respective subsidiaries or provide substitute policies for Momentive, Hexion and ~~employment practices~~ their former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by Momentive or Hexion in ~~an amount~~ either case, of not less than the existing coverage and ~~scope at least as~~ having other terms not less favorable as to the ~~Company’s existing policies~~ insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by Momentive or Hexion, respectively, with respect to ~~matters~~claims arising from facts or events that occurred on or before the Closing, ~~acts or omissions existing or occurring at or prior to the Effective Time; provided, however,~~ except that ~~Parent~~ in no event shall ~~not~~ Holdco be required to pay with respect to such insurance policies in respect of any one policy year more than 300% of the sum of the annual premiums payable by Momentive and Hexion for the year ended 2009 (the “Maximum Amount”), and if Holdco is unable to obtain the insurance required by this Section 5.5(b) it shall obtain as much comparable insurance as possible for the years within such six-year period for an annual premium equal to the Maximum Amount, in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date each of Momentive and Hexion may purchase a “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for itself and its current and former directors and officers who are currently covered by the ~~D&O Insurance in excess of (~~directors’ and officers’ and fiduciary liability insurance coverage currently maintained by either Momentive or Hexion, as the case may be, for ~~any one year) 150~~up to 300% of the annual premium ~~paid~~ payable by ~~the Company~~ Momentive or Hexion, as applicable, for such insurance ~~as of~~ for the ~~date~~ year ending December 31, 2009, in which event Holdco shall cease to have any obligations under the first sentence of this ~~Agreement;~~ Section 5.5(b). Holdco shall cause such policies to be maintained in full force and ~~provided~~effect, ~~further, that if~~ and the ~~annual premiums of such insurance coverage exceed such amount, Parent shall~~ obligations thereunder to be ~~obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amount~~honored. (ec) In Holdco shall pay or cause to be paid (as incurred) all expenses, including reasonable fees and expenses of counsel, that an Indemnified Person may incur in enforcing the ~~event that Parent, the Surviving Company or any Subsidiary of the Surviving Company,~~ indemnity and other obligations provided for in this Section 5.5. (d) If Holdco or any of ~~their respective~~ its successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving ~~company~~ 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~~person, then, and in each such case, to the extent necessary, proper ~~provisions~~ provision shall be made so that the successors and assigns of ~~Parent, the Surviving Company or such Subsidiary of the Surviving Company~~Holdco, as the case may be, shall assume the obligations set forth in this Section ~~6.4.~~ 5.5. (e) The provisions of this Section ~~6.4~~ 5.5 are (i) intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Indemnified Party, his or her heirs and ~~each Person entitled to indemnification~~representatives and (ii) in addition to, ~~exculpation~~and not in substitution for, ~~insurance coverage or expense advancement or~~ any other ~~right pursuant~~ rights to ~~this Section 6.4, and his, her~~ indemnification or ~~its heirs and representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to~~ contribution that any ~~rights~~ such ~~Indemnified Persons~~ person may have ~~under the Organizational Documents of the Company~~ by contract or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4otherwise.

Appears in 2 contracts

Samples: Combination Agreement (Hexion Specialty Chemicals, Inc.), Combination Agreement (Momentive Performance Materials Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, Parent shall, and shall cause the Surviving Company ~~shall~~to, ~~jointly and severally~~to the fullest extent permitted by applicable law, indemnify, defend and hold ~~harmless~~ harmless, and provide advancement of expenses to, each ~~Person~~ person who is now, or has been at any time prior to the date ~~of this Agreement~~ hereof or who becomes prior to the Effective Time, a director or officer of ~~the~~ Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise subsidiaries (the “Indemnified ~~Persons~~Parties”) against ~~and from~~ all losses, claims, damages, costs, ~~fines~~expenses, ~~penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities,~~ liabilities or judgments ~~and~~ or amounts that are paid in settlement ~~of,~~ of or ~~incurred~~ in connection with any ~~threatened~~ claim, action, suit, proceeding or ~~actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based,~~ investigation based in whole or in ~~part,~~ part on or ~~arising,~~ arising in whole or in ~~part,~~ part out of the fact that such ~~Person~~ person is or was ~~a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as~~ a director or officer of ~~another corporation~~Company or any subsidiary of Company, ~~partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether~~ and pertaining to any ~~act~~ matter existing or ~~omission occurring~~ occurring, or ~~existing prior to~~any acts or omissions occurring, at or ~~after~~ prior to the Effective ~~Time and~~ Time, whether asserted or claimed prior to, at or ~~after~~ after, the Effective Time (~~“Indemnified Liabilities”)~~including matters, ~~including all Indemnified Liabilities based~~ acts or omissions occurring in ~~whole or in part on, or arising in whole or in part out of, or pertaining to,~~ connection with the approval of this Agreement or and the ~~Transactions, in each case,~~ consummation of the transactions contemplated hereby) to the ~~fullest~~ same extent ~~permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any~~ such ~~Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought~~ persons are indemnified or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to ~~require that such determination be made~~ advancement of expenses as of the date of this Agreement by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to ~~this Agreement~~Company’s memorandum of association, ~~unless such settlement~~bye-laws and indemnification agreements and resolutions, ~~compromise~~if any, ~~consent~~ in existence on the date hereof with any directors or ~~termination includes an unconditional release~~ officers of ~~all Indemnified Persons from all liability arising out of such Proceeding~~ Company and ~~does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person~~its subsidiaries. (b) For a period of six ~~(6)~~ years ~~following~~ after the Effective Time, Parent shall cause to be maintained in effect an extended reporting period for the existing directors’ and officers’ liability insurance maintained by Company with respect to claims arising from facts or events which occurred at or before the ~~Surviving Company~~ Effective Time; provided that Parent shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person be obligated to ~~indemnification, exculpation and expense advancement except~~ make annual premium payments for such insurance to the extent ~~required~~ such premiums exceed 200% of the premiums paid as of the date hereof by ~~applicable Law~~Company for such insurance (“Company’s Current Premium”), and if such premiums for such insurance would at any time exceed 200% of Company’s Current Premium, then Parent shall cause to be maintained policies of insurance which, in Parent’s good faith determination, provide the maximum coverage available at an annual premium not in excess of 200% of Company’s Current Premium. Parent ~~shall~~may satisfy in full its obligations under this Section 5.9(b) by acquiring a tail directors’ and officers’ liability insurance policy (i) that covers each person currently covered by Company’s current directors’ and officers’ liability insurance policy for acts or omissions occurring prior to the Effective Time on terms with respect to such coverage and amounts no less favorable than those of such policy in effect on the date of this Agreement, and (ii) in respect of which the premium for a period until the sixth anniversary of the Effective Time is prepaid at the commencement of such period. At the request of Parent, Company shall ~~cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any~~ cooperate with Parent to obtain such a tail policy effective as of ~~its Subsidiaries and any of its directors, officers or employees existing immediately prior~~ the Effective Time. (c) To In the ~~extent permitted by applicable Law,~~ event that Parent ~~and~~ or the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time; provided, however, that Parent shall not be required to pay an annual premium for the D&O Insurance in excess of (for any one year) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amount. (e) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, or any of their respective successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other ~~Person~~ person and ~~shall~~ is not be the continuing or surviving ~~company~~ 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~~person (including by dissolution), then, and in each such case, Parent shall cause proper ~~provisions shall~~ provision to be made so that the successors and assigns of ~~Parent,~~ Parent or the Surviving Company ~~or such Subsidiary of the Surviving Company, as the case may be, shall~~ assume and honor the obligations set forth in this Section ~~6.4.~~ 5.9. (d) The provisions of this Section ~~6.4~~ 5.9 (i) are intended to be for the benefit of, and shall be enforceable by, ~~the parties and~~ each ~~Person entitled to indemnification~~Indemnified Party, ~~exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and ~~representatives. The rights of the Indemnified Persons under this Section 6.4~~ representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any ~~rights~~ such ~~Indemnified Persons~~ person may have ~~under the Organizational Documents of the Company~~ by contract or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4otherwise.

Appears in 2 contracts

Samples: Merger Agreement (Tower Group, Inc.), Merger Agreement (Tower Group, Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) From and after the Effective Time, Parent ~~agrees that all rights existing as~~ shall indemnify and hold harmless, to the fullest extent permitted by applicable law, each present and former director, officer or employee of the ~~date of this Agreement to indemnification, advancement of expenses~~ Company and ~~exculpation from Indemnified Liabilities in favor of current and/or former directors, officers~~ its Subsidiaries or ~~employees~~ fiduciaries of the Company or any of its Subsidiaries ~~as provided~~ under Company Benefit Plans (in ~~the Organizational Documents of the Company or any~~ each case, when acting in such ~~Subsidiary~~capacity) (collectively, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Company Indemnified ~~Persons~~Parties”) against ~~and from all losses~~any costs or expenses (including reasonable attorneys’ fees), ~~claims, damages, costs~~judgments, fines, ~~penalties~~losses, ~~expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of,~~ damages or liabilities incurred in connection with any threatened or actual ~~Proceeding to which such Indemnified Person is~~claim, ~~was~~ action, suit, proceeding or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacityinvestigation, whether ~~pertaining to any act~~ civil, criminal, administrative or ~~omission occurring or existing prior to~~investigative, at whether arising before or after the Effective ~~Time and whether asserted or claimed prior to~~Time, ~~at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or~~ arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require fact that such ~~determination be made by special~~person is or was a director, ~~independent legal counsel selected by the Indemnified Person and approved by Parent~~ officer, employee or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry fiduciary of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries ~~and any of its directors, officers~~ or ~~employees existing immediately prior the Effective Time.~~ (cii) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions matters existing or occurring at or prior to the Effective Time, including matters, acts or omissions occurring in connection with the consideration and approval of this Agreement and the consummation of the transactions contemplated hereby; and Parent shall advance expenses as incurred by such Company Indemnified Party to the fullest extent permitted by applicable law; provided that the Company Indemnified Party to whom expenses are advanced provides an undertaking (in a reasonable and customary form) to repay such advances if it is ultimately determined that such Company Indemnified Party is not entitled to indemnification. (b) Subject to the following sentence, for a period of six (6) years after the Effective Time, Parent shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance maintained by the 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 which are no less advantageous to the insured) with respect to claims against the present and former officers and directors of the Company 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, however, that Parent shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~300% of the aggregate annual premium paid as of the date hereof by the Company for such insurance as (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 available at an annual premium equal to the Premium Cap. In lieu of the ~~date~~ foregoing, the Company, in consultation with, but only upon the consent of Parent (which shall not be unreasonably withheld, conditioned or delayed, after taking into account the purposes of this ~~Agreement;~~ Section 6.7), may (and ~~provided~~at the request of Parent, ~~further, that if~~ the ~~annual premiums of such insurance coverage exceed such amount, Parent~~ Company shall ~~be obligated to~~ use its reasonable best efforts to) obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year “tail” policy under the Company’s existing directors and officers insurance policy 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, ~~for a cost~~ in the aggregate, does not ~~exceeding such amount~~exceed the Premium Cap. (ec) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights~~ If Parent or any of its successors or assigns consolidates with or merges into any other entity and is not the ~~Indemnified Persons under~~ 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, 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 ~~6.4 are~~ 6.7. For the avoidance of doubt, to the extent required by any agreement previously entered into by the Company in ~~addition~~ connection with a merger, acquisition or other business combination, the provisions of this Section 6.7 shall apply to ~~any rights such Indemnified Persons may have under the Organizational Documents~~ directors, officers, employees and fiduciaries of predecessor entities previously acquired by the Company or any of its Subsidiaries~~, or under any applicable contracts or Law.~~ . (d) The obligations of Parent and the ~~Surviving~~ Company ~~shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in~~ under this Section ~~6.4~~6.7 shall not be terminated or modified in a manner so as to adversely affect any Company Indemnified Party 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 such other person.

Appears in 2 contracts

Samples: Merger Agreement (First Niagara Financial Group Inc), Merger Agreement (Keycorp /New/)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, Parent and the Surviving ~~Company shall, jointly and severally, indemnify, defend~~ Corporation shall indemnify and hold harmless ~~each Person who is now~~to the fullest extent the Company would be permitted to do so under applicable Law (and Parent and the Surviving Corporation shall also advance expenses as incurred, ~~or has~~ to the fullest extent that the Company would have been ~~at any time prior to~~ permitted under Delaware law and the Company’s certificate of incorporation as of the date of this ~~Agreement~~ Agreement, to) each present and former director and officer of the Company and its Subsidiaries (collectively, in each case, the “Indemnified Parties” and each an “Indemnified Party”) against any costs or ~~who becomes prior~~ 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 ~~the Effective Time,~~ such Indemnified Parties’ service as a director or officer of the Company or ~~any of~~ its Subsidiaries or ~~is or was serving~~ services performed by such Persons at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or ~~after~~ prior to the Effective ~~Time and~~ Time, whether asserted or claimed prior to, at or after the Effective ~~Time (“Indemnified Liabilities”)~~Time, including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), 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 ~~Persons may retain~~ Party; 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 is not entitled to indemnification. (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 the premium for “tail” insurance policies for the extension of (i) the directors’ and officers’ liability coverage of the Company’s ~~regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person,~~ existing directors’ and ~~Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received~~officers’ insurance policies, and (ii) the ~~Surviving Company shall use its reasonable best efforts to assist~~ Company’s existing fiduciary liability insurance policies, in ~~the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent~~ each case for a claims reporting or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a discovery period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from and after the Effective Time from an one or more insurance ~~carrier~~ carriers with the same or better credit rating as the Company’s ~~current~~ insurance carrier as of the date hereof with respect to directors’ and officers’ liability ~~insurance,~~ insurance and fiduciary liability insurance (collectively, “D&O Insurance”) with terms, conditions, retentions and ~~employment practices~~ limits of liability ~~insurance in an amount and scope~~ that are at least as favorable to the insureds as the Company’s existing policies with respect to ~~matters, acts or omissions~~ matters existing or occurring at or prior to the Effective ~~Time~~Time (including in connection with this Agreement or the transactions or actions contemplated hereby); provided, however, that in no event shall Parent ~~shall not~~ or the Surviving Corporation be required to pay ~~an annual premium for the D&O Insurance~~ aggregate premiums in excess of ~~(for any one year) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement~~$350,000; and provided, further, that if the ~~annual premiums~~ cost of such insurance coverage ~~exceed~~ exceeds such amount, ~~Parent~~ the Surviving Corporation shall ~~be obligated to~~ obtain a policy with the greatest coverage ~~available, with respect to facts, acts, events or omissions occurring prior to the Effective Time,~~ available for a cost not exceeding such amount. (ec) ~~In the event that Parent,~~ If Parent or the Surviving ~~Company or any Subsidiary of the Surviving Company,~~ Corporation or any of their respective successors or ~~assigns,~~ assigns (i) ~~consolidates~~ shall consolidate with or ~~merges~~ merge into any other ~~Person~~ corporation or entity and shall not be the continuing or surviving ~~company~~ corporation or entity of such consolidation or merger or (ii) ~~transfers~~ shall transfer all or substantially all of its properties and assets to any ~~Person~~individual, corporation or other entity, then, and in each such case, proper provisions shall be made so that the successors and assigns of ~~Parent,~~ Parent or the Surviving ~~Company or such Subsidiary of the Surviving Company, as the case may be,~~ Corporation shall assume all of the obligations set forth in this Section ~~6.4.~~ 6.13. (d) The provisions of this Section ~~6.4~~ 6.13 are intended to be for the benefit of, and from and after the Effective Time shall be specifically enforceable by, each of the ~~parties and each Person entitled to indemnification~~Indemnified Parties, ~~exculpation, insurance coverage or expense advancement or any other right pursuant to~~ who shall be third party beneficiaries of this Section ~~6.4, and his, her or its heirs and representatives~~6.13. The rights of the Indemnified ~~Persons~~ Parties under this Section ~~6.4~~ 6.13 are in addition to any rights such Indemnified ~~Persons~~ Parties may have under the ~~Organizational Documents~~ certificate of incorporation, bylaws or comparable governing documents of the Company or any of its Subsidiaries, or under any applicable ~~contracts~~ Contracts or ~~Law~~Laws. ~~Parent~~ All rights to indemnification and exculpation 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, bylaws or comparable governing documents of the Company and its Subsidiaries or any indemnification agreement between such Indemnified Party and the ~~Surviving~~ Company or any of its Subsidiaries, in each case, as in effect on the date of this Agreement, shall ~~pay all expenses~~survive the Merger and the other transactions contemplated by this Agreement unchanged and, ~~including attorneys’ fees~~for a period of six years after the Effective Time, shall not be amended, repealed or otherwise modified in any manner that ~~may be incurred by~~ would adversely affect any right thereunder of any such Indemnified ~~Person in enforcing the indemnity and other obligations provided in this Section 6.4~~Party.

Appears in 2 contracts

Samples: Merger Agreement (Destination Maternity Corp), Merger Agreement

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, ~~Parent and~~ the Surviving ~~Company~~ Corporation shall, ~~jointly and severally~~to the fullest extent permitted by Applicable Legal Requirements, indemnify, defend and hold ~~harmless~~ harmless, and provide advancement of expenses to, each ~~Person~~ person who is now, or has been at any time prior to the date ~~of this Agreement~~ hereof or who becomes prior to the Effective Time, a an officer, director or ~~officer~~ employee of ~~the Company~~ Center Financial or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified ~~Persons~~Parties”) against ~~and from~~ all losses, claims, damages, costs, ~~fines~~expenses, ~~penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities,~~ liabilities or judgments ~~and~~ or amounts that are paid in settlement ~~of,~~ of or ~~incurred~~ in connection with any ~~threatened~~ claim, action, suit, proceeding or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities investigation based in whole or in part ~~on,~~ on or arising in whole or in part out ofof the fact that such person is or was a director, officer or employee of Center Financial or any Subsidiary of Center Financial, and pertaining to any matter existing or occurring, or ~~pertaining to~~any acts or omissions occurring, ~~this Agreement~~ at or ~~the Transactions, in each case,~~ prior to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), whether asserted or claimed prior to, or at or after, the Effective Time (i) including matters, acts or omissions occurring in connection with the ~~Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent~~ approval of this Agreement and the ~~Surviving Company shall pay all reasonable fees and expenses~~ consummation of the transactions contemplated hereby) (“Indemnified Liabilities”) to the same extent such ~~counsel for the Indemnified Persons as promptly as statements therefor~~ persons are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent indemnified or ~~Surviving Company under this Section 6.4, such Indemnified Person shall~~ have the right to ~~require that such determination be made~~ advancement of expenses as of the date of this Agreement by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person Center Financial pursuant to ~~this Agreement~~Center Financial’s Articles of Incorporation, ~~unless such settlement~~By-laws and indemnification agreements, ~~compromise~~if any, ~~consent or termination includes an unconditional release~~ in existence on the date hereof with any directors, officers and employees of ~~all Indemnified Persons from all liability arising out of such Proceeding~~ Center Financial and ~~does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person~~its Subsidiaries. (b) For a period of six ~~(6)~~ years ~~following~~ after the Effective Time, ~~Parent and~~ the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and Corporation shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement maintained in effect on the ~~date hereof or otherwise, regardless~~ current policies of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability~~ insurance ~~and employment practices liability insurance in an amount and scope~~ maintained by Center Financial (provided that the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least ~~as favorable as~~ the ~~Company’s existing policies~~ same coverage and amounts containing terms and conditions which are no less advantageous to the insured) with respect to ~~matters, acts~~ claims arising from facts or ~~omissions existing or occurring~~ events which occurred at or ~~prior to~~ before the Effective Time; provided, however, that ~~Parent~~ the Surviving Corporation shall not be ~~required~~ obligated to ~~pay an~~ make annual premium payments for such insurance to the ~~D&O Insurance in excess of (for any one year) 150~~extent such premiums exceed 250% of the ~~annual premium~~ premiums paid ~~by the Company for such insurance~~ as of the date ~~of this Agreement; and provided, further, that if the annual premiums of~~ hereof by Center Financial for such insurance (“Center Financial’s Current Premium”), and if such premiums for such insurance would at any time exceed 250% of Center Financial’s Current Premium, 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 ~~exceed such amount~~available at an annual premium equal to 250% of Center Financial’s Current Premium. In lieu of the foregoing, ~~Parent shall be obligated to~~ Center Financial, in consultation with, but only upon the consent of Nara, may obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ on or ~~omissions occurring~~ prior to the Effective ~~Time,~~ Time a six-year “tail” policy or “extended discovery period” under Center Financial’s existing directors and officers insurance policy providing equivalent coverage to that described in the preceding sentence if and to the extent that the same may be obtained for ~~a cost~~ an amount that does not ~~exceeding such amount~~exceed Center Financial’s Current Premium. (ec) In The Surviving Corporation shall pay (as incurred) all expenses, including reasonable fees and expenses of counsel, that an Indemnified Party may incur in enforcing the ~~event that Parent,~~ indemnity and other obligations provided for in this Section 5.10. (d) If the Surviving ~~Company or any Subsidiary of the Surviving Company,~~ Corporation or any of ~~their respective~~ its successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving ~~company~~ 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 ~~provisions~~ provision shall be made so that the successors and assigns of ~~Parent,~~ the Surviving ~~Company or such Subsidiary of the Surviving Company~~Corporation, as the case may be, shall assume the obligations set forth in this Section ~~6.4.~~ 5.10. (e) The provisions of this Section ~~6.4~~ 5.10 (i) are intended to be for the benefit of, and shall be enforceable by, ~~the parties and~~ each ~~Person entitled to indemnification~~Indemnified Party, ~~exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and ~~representatives. The rights of the Indemnified Persons under this Section 6.4~~ representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any ~~rights~~ such ~~Indemnified Persons~~ Person may have ~~under the Organizational Documents of the Company~~ by contract or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4otherwise.

Appears in 2 contracts

Samples: Merger Agreement (Nara Bancorp Inc), Merger Agreement (Center Financial Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) From and after the Effective Time, to the extent permitted by applicable law, Parent ~~agrees that all rights existing as~~ shall cause the Surviving Corporation to indemnify and hold harmless each present and former director, officer or employee of the ~~date of this Agreement to indemnification, advancement of expenses~~ Company and ~~exculpation from Indemnified Liabilities in favor of current and/or former directors, officers~~ its Subsidiaries or ~~employees~~ fiduciaries of the Company or any of its Subsidiaries ~~as provided~~ under Company Benefit Plans (in each case, when acting in such capacity) (collectively, the ~~Organizational Documents~~ “Company Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, whether arising before or after the Effective Time, arising in whole or in part out of (i) the fact that such person is or was a director, officer or employee of the Company or any ~~such Subsidiary, any employment agreement~~ Company Subsidiary or ~~indemnification agreement in effect on the date hereof~~ is or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, was a ~~director or officer~~ fiduciary of the Company or any of its Subsidiaries under Company Benefit Plans or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time, including the transactions contemplated hereby, to the same extent as such persons are indemnified as of the date of this Agreement by the Company pursuant to the Company Certificate, the Company Bylaws, the governing or organizational documents of any Company Subsidiary and any indemnification agreements in existence as of the date hereof; and Parent shall also cause the Surviving Corporation to advance expenses as incurred by such Company Indemnified Party to the same extent as 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, the governing or organizational documents of any Company Subsidiary and any indemnification agreements in existence as of the date hereof; provided that the Company Indemnified Party to whom expenses are advanced provides an undertaking (in a reasonable and customary form) to repay such advances if it is ultimately determined that such Company Indemnified Party is not entitled to indemnification. (b) Subject to the following sentence, for a period of six (6) years after the Effective Time, Parent shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance maintained by the 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 which are no less advantageous to the insured) with respect to claims against the present and former officers and directors of the Company 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, however, that Parent shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~300% of the aggregate annual premium paid as of the date hereof by the Company for such insurance as (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 available at an annual premium equal to the Premium Cap. In lieu of the ~~date~~ foregoing, the Company may in consultation with Parent (and at the request of ~~this Agreement; and provided~~Parent, ~~further, that if~~ the ~~annual premiums of such insurance coverage exceed such amount, Parent~~ Company shall ~~be obligated to~~ use its reasonable best efforts to) obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year “tail” policy under the Company’s existing directors and officers insurance policy 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, ~~for a cost~~ in the aggregate, does not ~~exceeding such amount~~exceed the Premium Cap. (ec) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of~~ If either Parent or the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ Surviving Corporation, or any of their respective 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 ~~Subsidiaries~~assets or deposits to any other entity or engages in any similar transaction, then in each case, Parent or ~~under any applicable contracts or Law. Parent and~~ the Surviving ~~Company shall pay all expenses~~Corporation, ~~including attorneys’ fees~~as the case may be, will cause proper provision to be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may ~~be incurred by any Indemnified Person in enforcing~~ be, will expressly assume the ~~indemnity and other~~ obligations ~~provided~~ of Parent or the Surviving Corporation, as the case may be, set forth in this Section ~~6.4~~6.7.

Appears in 2 contracts

Samples: Merger Agreement (Chubb Corp), Merger Agreement

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, Parent and the Surviving ~~Company shall~~Corporation, jointly and severally, (i) shall indemnify, defend and hold harmless each ~~Person~~ person who is now, or has been at any time prior to the date ~~of this Agreement~~ hereof or who becomes prior to the Effective Time, a an officer, director or ~~officer~~ employee of ~~the~~ Company or any of its ~~Subsidiaries~~ past or ~~is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation~~present Subsidiaries, ~~partnership~~including, ~~limited liability company~~without limitation, ~~joint venture~~AHA, ~~Employee Benefit Plan~~InstiPro Group, ~~trust or other enterprise~~ Inc. and InstiPro, Inc. (the “"Indemnified ~~Persons”~~Parties") against ~~and from~~ all losses, claims, damages, costs, ~~fines~~expenses, ~~penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities,~~ liabilities or judgments ~~and~~ or amounts that are paid in settlement ~~of,~~ of or ~~incurred~~ in connection with any ~~threatened~~ claim, action, suit, proceeding or ~~actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based,~~ investigation based in whole or in ~~part,~~ part on or ~~arising,~~ arising in whole or in ~~part,~~ part out of the fact that such ~~Person~~ person is or was a director, ~~officer,~~ officer or employee ~~or agent~~ of ~~the~~ Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacitySubsidiaries, whether pertaining to any ~~act~~ matter existing or ~~omission~~ occurring ~~or existing prior to,~~ at or ~~after~~ prior to the Effective Time and whether asserted or claimed prior to, or at or after the Effective Time (“"Indemnified Liabilities”")~~, including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case~~, to the ~~fullest~~ same extent ~~permitted under applicable Law (and Parent and the Surviving~~ such persons are indemnified by Company ~~shall, jointly and severally, pay expenses incurred in connection therewith in advance~~ as of the ~~final disposition~~ date of ~~any such Proceeding~~ this Agreement pursuant to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company~~’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person,~~ 's certificate of incorporation and ~~Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received,~~ by-laws and (ii) to the extent permitted by applicable Law, shall cause to be maintained in effect in the Surviving ~~Company shall use its reasonable best efforts to assist~~ Corporation's certificate of incorporation and bylaws after the Effective Time provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses which are, in the ~~defense~~ aggregate, not materially less favorable to the intended beneficiaries than the corresponding provisions contained in the certificate of ~~any such matter~~incorporation and bylaws of Company on the date hereof. ~~With respect to any~~ If requested by an Indemnified Party, the determination of whether or not the Indemnified Party has met any ~~Indemnified Person is entitled to~~ applicable standard of conduct required by Law for indemnification (unless made by ~~Parent or Surviving Company under this Section 6.4, such Indemnified Person~~ a court) shall ~~have the right to require that such determination~~ be made by ~~special,~~ independent ~~legal~~ counsel selected by Parent and reasonably acceptable to the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified PersonParty. (b) For a period of six ~~(6)~~ years ~~following~~ after the Effective Time, ~~Parent and~~ the Surviving Corporation shall cause to be maintained in effect the current policies of directors' and officers' liability insurance maintained by Company ~~shall not amend, repeal or otherwise modify any provision in the Organizational Documents of~~ (provided that the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance Corporation may substitute therefor policies ~~(collectively, the “D&O Insurance”) with a claims period~~ of at least ~~six years from the Effective Time from an insurance carrier with~~ the same ~~or better credit rating as~~ coverage and amounts containing terms and conditions which are in the ~~Company’s current insurance carrier~~ aggregate not materially less advantageous to the insured) with respect to directors’ and officers’ liability insurance, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts claims arising from facts or ~~omissions existing or occurring at or prior to~~ events which occurred before the Effective Time; provided, however, that ~~Parent~~ the Surviving Corporation shall not be ~~required~~ obligated to ~~pay an~~ make annual premium payments for such insurance to the ~~D&O Insurance in excess of (for any one year) 150~~extent such premiums exceed 300% of the ~~annual premium~~ premiums paid as of the date hereof by ~~the~~ Company for such insurance ~~as of the date of this Agreement;~~ ("Company's Current Premium"), and ~~provided, further, that~~ if ~~the annual~~ such premiums of for such insurance ~~coverage~~ would at any time exceed ~~such amount~~300% of Company's Current Premium, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amount. (e) In the event that Parent, then the Surviving ~~Company or any Subsidiary~~ 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 300% of Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4's Current Premium. The provisions of this Section ~~6.4~~ 5.6(b) shall be deemed to have been satisfied if prepaid policies have been obtained prior to the Closing for purposes of this Section 5.6, which policies provide such directors and officers with coverage for an aggregate period of six years after the Effective Time with respect to claims arising from facts or events that occurred before the Effective Time, 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 prior to the Closing, Parent shall maintain such policies in full force and effect, and continue to honor the obligations thereunder. (c) The provisions of this Section 5.6 are (i) intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Indemnified Party, his or her heirs and ~~each Person entitled to indemnification~~representatives and (ii) in addition to, ~~exculpation~~and not in substitution for, ~~insurance coverage or expense advancement or~~ any other ~~right pursuant~~ rights to ~~this Section 6.4, and his, her~~ indemnification or ~~its heirs and representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to~~ contribution that any ~~rights~~ such ~~Indemnified Persons~~ person may have ~~under the Organizational Documents of the Company~~ by Law, contract or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4otherwise.

Appears in 2 contracts

Samples: Merger Agreement (Investment Technology Group Inc), Merger Agreement (Hoenig Group Inc)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, ~~Parent~~ each of Huntington and the Surviving Company ~~shall, jointly and severally, indemnify, defend~~ shall indemnify and hold ~~harmless each Person who is now~~harmless, ~~or has been at any time prior~~ to the ~~date~~ fullest extent permitted by applicable law, each present and former director, officer or employee of ~~this Agreement~~ FirstMerit and its Subsidiaries or ~~who becomes prior to the Effective Time, a director or officer~~ fiduciaries of ~~the Company~~ FirstMerit or any of its Subsidiaries ~~or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation~~under FirstMerit Benefit Plans (in each case, ~~partnership~~when acting in such capacity) (collectively, ~~limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (~~the “FirstMerit Indemnified ~~Persons~~Parties”) against ~~and from all losses~~any costs or expenses (including reasonable attorneys’ fees), ~~claims, damages, costs~~judgments, fines, ~~penalties~~losses, ~~expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of,~~ damages or liabilities incurred in connection with any threatened or actual ~~Proceeding to which such Indemnified Person is~~claim, ~~was~~ action, suit, proceeding or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacityinvestigation, whether ~~pertaining to any act~~ civil, criminal, administrative or ~~omission occurring or existing prior to~~investigative, at whether arising before or after the Effective ~~Time and whether asserted or claimed prior to~~Time, ~~at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or~~ arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require fact that such ~~determination be made by special~~person is or was a director, ~~independent legal counsel selected by the Indemnified Person and approved by Parent~~ officer, employee or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry fiduciary of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company FirstMerit or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any ~~Organizational Documents of the Company~~ FirstMerit Benefit Plans or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (dii) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time, including matters, acts or omissions occurring in connection with the consideration and approval of this Agreement and the consummation of the transactions contemplated by this Agreement; and Huntington and the Surviving Company shall also advance expenses as incurred by such FirstMerit Indemnified Party to the fullest extent permitted by applicable law; provided, that the FirstMerit Indemnified Party to whom expenses are advanced provides an undertaking (in a reasonable and customary form) to repay such advances if it is ultimately determined that such FirstMerit Indemnified Party is not entitled to indemnification. (b) For a period of six (6) years after the Effective Time, Huntington shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by FirstMerit or its Subsidiaries and any similar policies covering fiduciaries under the FirstMerit Benefit Plans (provided, that Huntington 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 insured) with respect to claims against the present and former officers and directors of FirstMerit 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, however, that ~~Parent~~ Huntington shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~300% of the current annual premium paid ~~by the Company for such insurance~~ as of the date ~~of this Agreement; and provided, further, that if the annual premiums of~~ hereof by FirstMerit for such insurance (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then Huntington shall cause to be maintained policies of insurance that, in Huntington’s good faith determination, provide the maximum coverage ~~exceed such amount~~available at an annual premium equal to the Premium Cap. In lieu of the foregoing, ~~Parent~~ FirstMerit, in consultation with, but only upon the consent of Huntington, may (and at the request of Huntington, FirstMerit shall ~~be obligated to~~ use its reasonable best efforts to) obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year “tail” policy under FirstMerit’s existing directors’ and officers’ insurance policy and similar policy covering fiduciaries under the FirstMerit Benefit Plans 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, ~~for~~ in the aggregate, does not exceed, on an annual basis, the Premium Cap. If a ~~cost~~ “tail policy” is purchased as provided above, Huntington shall maintain in full force and effect and not ~~exceeding~~ cancel such ~~amount~~“tail policy”. (ec) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 6.8 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each FirstMerit Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights~~ If Huntington, the Surviving Company or any of their respective successors or assigns consolidates with or merges into any other entity and is not the ~~Indemnified Persons under~~ 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, Huntington or the Surviving Company, as applicable, will cause proper provision to be made so that the successors and assigns of Huntington or the Surviving Company will expressly assume the obligations set forth in this Section ~~6.4 are~~ 6.8. For the avoidance of doubt, to the extent required by any agreement previously entered into by FirstMerit in ~~addition~~ connection with a merger, acquisition or other business combination, the provisions of this Section 6.8 shall apply to ~~any rights such Indemnified Persons may have under the Organizational Documents~~ directors, officers, employees and fiduciaries of ~~the Company~~ predecessor entities previously acquired by FirstMerit or any of its Subsidiaries~~, or under any applicable contracts or Law. Parent and~~ . (d) The obligations of the Surviving ~~Company shall pay all expenses~~Company, ~~including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity~~ Huntington and ~~other obligations provided in~~ FirstMerit under this Section ~~6.4~~6.8 shall not be terminated or modified in a manner so as to adversely affect any FirstMerit Indemnified Party or any other person entitled to the benefit of this Section 6.8 without the prior written consent of the affected FirstMerit Indemnified Party.

Appears in 2 contracts

Samples: Merger Agreement (Huntington Bancshares Inc/Md), Merger Agreement (Firstmerit Corp /Oh/)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, Parent shall, and shall cause the Surviving Company ~~shall~~to, ~~jointly and severally, indemnify, defend~~ indemnify and hold harmless each ~~Person who is now~~present and former director and officer of the Company determined as of the Effective Time (the “Indemnified Parties”), against any costs or ~~has been~~ expenses (including reasonable and documented 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 (a “proceeding”) (including with respect to matters existing or occurring at ~~any time prior to the date of this Agreement~~ or ~~who becomes~~ prior to the Effective ~~Time~~Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of the fact that such Indemnified Party is or was a director or officer of the ~~Company~~ Company, or, while a director or ~~any~~ officer of ~~its Subsidiaries or~~ the Company, is or was serving at the request of the Company ~~or any of its Subsidiaries~~ as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of ~~the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of~~ another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such~~ Person ~~in any such capacity, whether pertaining~~ prior to ~~any act or omission occurring or existing prior to, at or after~~ the Effective ~~Time and~~ Time, in each case, whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each caseTime, to the fullest extent ~~permitted~~ that the Company would have been required to under Delaware Law, any applicable ~~Law~~ indemnification agreement to which such Person is a party in effect as of the date of this Agreement, the Company Charter or Company Bylaws in effect on the date of this Agreement to indemnify such Person (and the Surviving Company shall also advance expenses as incurred by Indemnified Parties in defending any proceeding to the same extent as such Indemnified Parties are entitled to advance of expenses as of the date of this Agreement by Company pursuant to the Company Charter, Company Bylaw or any applicable indemnification agreement to which such Person is a party; 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). Parent ~~and~~ shall ensure that the organizational documents of the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years ~~following~~ from and after the Effective Time, ~~Parent~~ contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors, officers, employees and agents of the ~~Surviving~~ Company and its Subsidiaries than are presently set forth in the Company Charter and Company Bylaws. Any right of indemnification of an Indemnified Party pursuant to this Section 5.12 shall not ~~amend~~be amended, ~~repeal~~ repealed or otherwise ~~modify~~ modified at any ~~provision~~ time in ~~the Organizational Documents of the Surviving Company or its Subsidiaries in any~~ a manner that would adversely affect ~~adversely~~ the rights ~~thereunder or under the Organizational Documents~~ of ~~the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except~~ such Indemnified Party as provided herein. (b) Prior to the ~~extent required by applicable Law.~~ Effective Time, the Company shall and, if the Company is unable to, Parent ~~shall, and~~ shall cause the Surviving Company ~~and its Subsidiaries~~ as of the Effective Time to, ~~fulfill~~ obtain and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully ~~prepay immediately prior to the Effective Time,~~ pay for “tail” insurance policies ~~(collectively, the “D&O Insurance”)~~ 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, ~~fiduciary liability insurance and~~ employment practices liability insurance ~~in an amount~~ and ~~scope~~ fiduciary liability insurance with benefits and levels of coverage at least as favorable as the Company’s existing policies with respect to ~~matters, acts or omissions~~ matters existing or occurring at or prior to the Effective ~~Time~~Time (including in connection with this Agreement or the transactions or actions contemplated hereby); provided, ~~however,~~ however that ~~Parent~~ in no event shall ~~not be required to pay~~ the Company expend for such policies an annual premium ~~for the D&O Insurance~~ amount in excess of three hundred percent (~~for any one year~~300%) ~~150%~~ of the annual ~~premium~~ premiums currently paid by the Company for such insurance ~~as of the date of this Agreement; and~~ provided, ~~further,~~ further that if the ~~annual premiums of~~ premium for such insurance coverage ~~exceed~~ exceeds such amount, ~~Parent~~ the Surviving Company shall ~~be obligated to~~ obtain a policy with the greatest coverage ~~available, with respect to facts, acts, events or omissions occurring prior to the Effective Time,~~ available for a cost not exceeding such amount~~. (e) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company,~~ . If Parent or any of ~~their respective~~ its successors or ~~assigns,~~ assigns (i) ~~consolidates~~ shall consolidate with or ~~merges~~ merge into any other ~~Person~~ corporation or entity and shall not be the continuing or surviving ~~company~~ corporation or entity of such consolidation or merger or (ii) ~~transfers~~ shall transfer all or substantially all of its properties and assets to any ~~Person~~individual, ~~then~~corporation or other entity, then and in each such ~~case,~~ case proper provisions shall be made so that the successors and assigns of ~~Parent, the Surviving Company or such Subsidiary~~ Parent shall assume all of the ~~Surviving Company, as the case may be, shall assume the~~ obligations of Parent set forth in this Section ~~6.4.~~ 5.12. (c) The provisions of this Section ~~6.4~~ 5.12 are intended to be for the benefit of, and shall be enforceable by, each of the ~~parties and each Person entitled to indemnification~~Indemnified Parties, ~~exculpation, insurance coverage or expense advancement or any other right pursuant to this Section 6.4, and his, her or its~~ their heirs and their representatives. The rights of ~~the~~ each Indemnified ~~Persons~~ Party under this Section ~~6.4 are~~ 5.12 shall be in addition to any rights such ~~Indemnified Persons~~ individual may have under Delaware Law, any applicable indemnification agreement to which such Person is a party, the ~~Organizational Documents~~ Company Charter or the Company Bylaws. (d) Neither of Parent or the Surviving Company 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. (e) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its ~~Subsidiaries~~Subsidiaries for any of their respective directors, officers or ~~under any applicable contracts or Law. Parent~~ other employees, it being understood and agreed that the ~~Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations~~ indemnification provided for in this Section ~~6.4~~5.12 is not prior to or in substitution for any such claims under such policies.

Appears in 2 contracts

Samples: Merger Agreement (Engility Holdings, Inc.), Merger Agreement (Science Applications International Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, each of Parent and the Surviving ~~Company shall, jointly and severally, indemnify, defend~~ Corporation agrees that it will indemnify and hold harmless each ~~Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a~~ present and former director or and officer of the Company or any of its Subsidiaries (in each case, when acting in his or ~~is or was serving at the request~~ her “official capacity” as defined in Section 302A.521 of the ~~Company or any~~ MBCA), determined as of ~~its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise~~ the Effective Time (the “Indemnified ~~Persons~~Parties”) ), against ~~and from all losses~~any costs or expenses (including reasonable attorneys’ fees), ~~claims, damages, costs~~judgments, fines, penalties, ~~expenses~~ losses, claims, damages or liabilities (~~including attorneys’ and other professionals’ fees and expenses)~~collectively, ~~liabilities, judgments and amounts that are paid in settlement of, or~~ “Costs”) incurred in connection with any ~~threatened~~ claim, action, suit, proceeding or ~~actual Proceeding to which such Indemnified Person is~~investigation, ~~was~~ whether civil, criminal, administrative or ~~becomes a party or is otherwise involved (including as a witness) based~~investigative, ~~in whole or in part, on or arising, in whole or in part,~~ arising out of ~~the fact that such Person is~~ matters existing or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring ~~or existing prior to,~~ at or ~~after~~ prior to the Effective ~~Time and~~ Time, whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each caseTime, to the fullest extent that the Company would have been permitted under ~~applicable Law~~ Minnesota law and its articles of incorporation or bylaws in effect on the date hereof to indemnify such Person (and Parent ~~and~~ or the Surviving ~~Company shall, jointly and severally, pay~~ Corporation shall also advance expenses as incurred ~~in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person~~ 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); 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 Minnesota law and the Company’s articles of incorporation and bylaws 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 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. ~~Without limiting the foregoing, in~~ In the event of any such ~~Proceeding is brought~~ claim, action, suit, proceeding or ~~threatened to be brought against any Indemnified Persons~~ 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 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 ~~Persons~~ 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 ~~the Company’s regularly engaged legal counsel or other~~ counsel satisfactory to ~~such Indemnified Person~~them, and Parent ~~and~~ or the Surviving ~~Company~~ Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified ~~Persons as~~ 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 action 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 ~~Surviving Company shall use its reasonable best efforts to assist~~ Indemnified Parties will cooperate in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (diii) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time; provided, however, that Parent Corporation shall not be ~~required to pay an annual premium for the D&O Insurance in excess of (~~liable for any ~~one year) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement~~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 that the ~~annual premiums~~ indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law. Nothing in this Section 6.10(b) shall be effective to the extent it limits the rights of an Indemnifying party under applicable law, including, as it applies to the Surviving Corporation, the MBCA. (c) The Surviving Corporation shall maintain the Company’s directors’ and officers’ liability insurance ~~coverage exceed such amount~~(“D&O Insurance”), or Parent shall ~~be obligated to obtain a policy with~~ provide for equivalent D&O Insurance providing substantially the ~~greatest~~ same benefits and levels of coverage ~~available~~as the current D&O Insurance, with respect to ~~facts, acts, events~~ acts or omissions ~~occurring~~ prior to the Effective ~~Time,~~ Time for a ~~cost~~ period of six years after the Effective Time so long as the premium therefor is not ~~exceeding~~ in excess of 200% of the last annual premium paid by the Company prior to the date hereof (the “Current Premium”); provided, however, that if the current D&O Insurance or such ~~amount~~equivalent insurance provided by Parent expires, is terminated or cancelled or is otherwise unavailable on such terms during such six-year period, Parent and the Surviving Corporation will use their reasonable best efforts to obtain as much D&O Insurance on substantially the same terms as can be obtained for the remainder of such period for a premium not in excess of 200% of the Current Premium. (ed) ~~In the event that Parent,~~ If Parent or the Surviving ~~Company or any Subsidiary of the Surviving Company,~~ Corporation or any of their respective successors or ~~assigns,~~ assigns (i) ~~consolidates~~ shall consolidate with or ~~merges~~ merge into any other ~~Person~~ corporation or entity and shall not be the continuing or surviving ~~company~~ corporation or entity of such consolidation or merger or (ii) ~~transfers~~ shall transfer all or substantially all of its properties and assets to any ~~Person~~individual, corporation or other entity, then, and in each such case, proper provisions shall be made so that the successors and assigns of ~~Parent,~~ Parent or the Surviving ~~Company or such Subsidiary of the Surviving Company~~Corporation, as the case may be, shall assume all of the obligations set forth in this ~~Section 6.4.~~ Section. (e) The provisions of this Section ~~6.4~~ 6.11 are intended to be for the benefit of, and shall be enforceable by, ~~the parties and~~ each ~~Person entitled to indemnification, exculpation, insurance coverage or expense advancement or any other right pursuant to this Section 6.4, and his, her or its heirs and representatives. The rights~~ of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4Parties.

Appears in 2 contracts

Samples: Merger Agreement (Compex Technologies Inc), Merger Agreement (Encore Medical Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, ~~Parent and~~ Buyer (the ~~Surviving Company shall, jointly and severally, indemnify, defend~~ “Indemnifying Party”) shall indemnify and hold ~~harmless~~ harmless, each ~~Person~~ present and former board member or officer of Company and its Subsidiaries (the “Indemnified Parties”) and any person who ~~is now, or has been at any time prior to~~ becomes an Indemnified Party between the date of this Agreement and the Effective Time, against any costs or ~~who becomes~~ expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities and amounts paid in settlement incurred after the Effective Time in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising 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 fact that he or she was a ~~director~~ board member or officer of ~~the~~ Company or any of its Subsidiaries or is or was serving at the request of ~~the~~ Company or any of its Subsidiaries as a ~~director or officer of another corporation~~board member, ~~partnership~~officer, ~~limited liability company~~employee, ~~joint venture, Employee Benefit Plan, trust~~ trustee or other ~~enterprise (the “Indemnified Persons”) against and from all losses~~agent of any other organization or in any capacity with respect to any employee benefit plan of Company, ~~claims, damages, costs, fines, penalties, expenses (~~including ~~attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred~~ without limitation any matters arising in connection with or related to the negotiation, execution, and performance of this Agreement or any ~~threatened or actual Proceeding~~ of the transactions it contemplates, to the full extent to which such Indemnified ~~Person is, was or becomes a party or is otherwise involved (including~~ Parties would be entitled to have the right to be indemnified under the Articles of Organization and Bylaws of Company as ~~a witness) based,~~ in ~~whole or~~ effect on the date of this Agreement as though such Articles of Organization and Bylaws continue to remain in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or effect after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent as permitted ~~under~~ by applicable ~~Law (and Parent and the Surviving Company shall, jointly and severally,~~ Law. Buyer shall pay expenses ~~incurred in connection therewith~~ in advance of the final disposition of any such ~~Proceeding~~ action or proceeding to each Indemnified ~~Person~~ Party to the ~~fullest~~ full extent as would have been permitted by Company under ~~applicable Law)~~the Company’s Articles of Organization, upon receipt of an undertaking to repay such advance payments if such officer, board member or employee shall be adjudicated or determined to be not entitled to indemnification in accordance with the Company’s Articles of Organization. ~~Without limiting~~ Buyer’s obligations under this Section 6.08(a) shall continue in full force and effect for a period of six (6) years from the ~~foregoing~~Effective Time; provided, however, that all rights to indemnification in respect of any claim asserted or made within such period shall continue until the final disposition of such claim; and provided further, that Xxxxx’s obligations as successor in interest to the Company shall continue as required under the Articles of Organization and Bylaws of the Company. (b) Any Indemnified Party wishing to claim indemnification under this Section 6.08, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify the Indemnifying 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 ~~Proceeding is brought~~ claim, action, suit, proceeding or ~~threatened to be brought against any Indemnified Persons~~ investigation (whether arising before or after the Effective Time), (i) the ~~Indemnified Persons may retain~~ Indemnifying Party shall have the ~~Company’s regularly engaged legal counsel or other counsel satisfactory~~ right to assume the defense and the Indemnifying Party shall not be liable to such Indemnified ~~Person~~Parties for any legal expenses of other counsel or any other expenses subsequently incurred by the Indemnified Parties in connection with the defense, except that if the Indemnifying Party elects not to assume 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 ~~Parent and~~ the ~~Surviving Company~~ Indemnifying Party shall ~~pay all~~ pay, promptly as statements are received, the reasonable fees and expenses of ~~such~~ counsel for the Indemnified ~~Persons as promptly as statements therefor are received~~Parties (which may not exceed one firm in any jurisdiction), ~~and~~ (ii) the ~~Surviving Company shall use its reasonable best efforts to assist~~ Indemnified Parties will cooperate in the defense of any such matter~~. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4~~, ~~such Indemnified Person shall have~~ (iii) the ~~right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval~~ Indemnifying Party shall not be ~~unreasonably withheld~~ 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 ~~delayed),~~ state banking agency or a court of competent jurisdiction shall determine that indemnification of an Indemnified Party is prohibited by applicable Laws and ~~who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything~~ regulations. (c) Prior to the ~~contrary contained in this Agreement~~Closing, ~~Parent shall not (and Parent~~ Buyer shall cause the Surviving ~~Company not to) settle~~ Entity as of the Effective Time to obtain 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 compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a discovery period of at least six (6) years ~~following the Effective Time, Parent~~ from and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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~~insurance (“D&O Insurance”) with terms, ~~fiduciary~~ conditions, retentions, and limits of liability ~~insurance and employment practices liability insurance in an amount and scope~~ that are at least as favorable to the Indemnified Parties as ~~the~~ Company’s existing policies with respect to ~~matters~~any actual or alleged error, ~~acts~~ misstatement, misleading statement, act, omission, neglect, breach of duty or ~~omissions existing~~ any matter claimed against a director or ~~occurring~~ officer of Company or any of its Subsidiaries by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective ~~Time~~Time (including in connection with this Agreement or the transactions or actions it contemplates); provided, however, that ~~Parent~~ in no event shall ~~not~~ Company expend, or Buyer or the Surviving Entity be required to ~~pay an annual~~ expend, for such “tail” policy in the aggregate a premium ~~for the D&O Insurance~~ amount in excess of an amount (~~for any one year~~the “Maximum D&O Tail Premium”) ~~150~~equal to 300% of the annual ~~premium~~ premiums paid by ~~the~~ Company for ~~such insurance~~ D&O Insurance in effect as of the date of this Agreement; ~~and provided,~~ provided further, that if the ~~annual premiums~~ cost of such ~~insurance coverage exceed such amount~~a tail policy exceeds the Maximum D&O Tail Premium, ~~Parent~~ Company, Buyer or the Surviving Entity shall ~~be obligated to~~ obtain a tail policy with the greatest coverage ~~available, with respect to facts, acts, events or omissions occurring prior to the Effective Time,~~ available for a cost not exceeding ~~such amount~~Maximum D&O Tail Premium. (ed) ~~In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company,~~ If Buyer or any of ~~their respective~~ its successors or ~~assigns, (i) consolidates~~ assigns shall consolidate with or ~~merges~~ merge into any other ~~Person~~ entity and shall not be the continuing or surviving ~~company or~~ entity of such consolidation or merger or ~~(ii) transfers~~ shall transfer all or substantially all of its ~~properties and~~ assets to any ~~Person~~other entity, ~~then,~~ then and in each ~~such~~ case, proper ~~provisions~~ provision shall be made so that the successors and assigns of ~~Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be,~~ Buyer shall assume the obligations set forth in this Section ~~6.4. The provisions~~ 6.08. (e) Nothing in this Agreement is intended to, shall be construed to or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to Company or its officers, directors and employees, and that the indemnification of this Section ~~6.4 are intended to be~~ 6.08 is not a substitute for ~~the benefit of, and shall be enforceable by, the parties and each Person entitled to indemnification, exculpation, insurance coverage or expense advancement or~~ any ~~other right~~ claim under any such policy. (f) Any indemnification payment made pursuant to this Section ~~6.4,~~ 6.08 is subject to and ~~his, her or~~ conditioned upon its ~~heirs and representatives. The rights~~ compliance with Section 18(k) of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent Federal Deposit Insurance Act (12 U.S.C. § 1828(k)) and the ~~Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred~~ regulations promulgated by ~~any Indemnified Person in enforcing~~ the ~~indemnity and other obligations provided in this Section 6.4~~FDIC (12 C.F.R. Part 359).

Appears in 2 contracts

Samples: Merger Agreement (Eastern Bankshares, Inc.), Merger Agreement (Cambridge Bancorp)

Indemnification; Directors’ and Officers’ Insurance. (a) From and after the Effective Time, each of Parent ~~agrees that all rights existing as~~ and the Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted by Law, each present and former director, officer or employee of the ~~date~~ Company and its Subsidiaries (in each case, for actions taken in such capacity) (collectively, the “Company Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, whether arising before or after the Effective Time, arising out of ~~this Agreement to indemnification~~the fact that such person is or was a director, ~~advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers~~ officer or ~~employees~~ employee of the Company or any of its Subsidiaries ~~as provided in the Organizational Documents of the Company~~ and pertaining to matters existing or ~~any such Subsidiary, any employment agreement~~ occurring at or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, ~~a director or officer of~~ including the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or transactions contemplated by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this ~~Agreement or the Transactions, in each case~~Agreement, to the fullest extent ~~permitted under~~ such persons are entitled to be indemnified 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 applicable ~~Law (and~~ to such person. Each of Parent and the Surviving Corporation shall also advance expenses as incurred by such Company ~~shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each~~ Indemnified ~~Person~~ Party to the fullest extent ~~permitted under applicable Law). Without limiting the foregoing, in the event any~~ such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor persons are ~~received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is~~ entitled to ~~indemnification by Parent or Surviving Company under~~ advancement of expenses as of the date of this ~~Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected~~ Agreement by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving CompanyCompany pursuant to the Company Certificate, the Company Bylaws or the ~~Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle~~ governing or ~~compromise or consent to the entry~~ organizational documents of any ~~judgment~~ Subsidiary of the Company; provided that, if requested by Parent, the 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 ~~otherwise seek termination with respect~~ by a court of competent jurisdiction that such Company Indemnified Party is not entitled to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Personindemnification. (b) For a period of six (6) years ~~following~~ after the Effective Time, ~~Parent and~~ the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and Corporation shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement maintained in effect on the ~~date hereof or otherwise, regardless~~ current policies of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability~~ insurance ~~and employment practices liability insurance in an amount and scope~~ maintained by the Company (provided that the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least ~~as favorable as~~ the ~~Company’s existing policies~~ same coverage and amounts containing terms and conditions that are no less advantageous to the insured) with respect to ~~matters, acts~~ claims arising from facts or ~~omissions existing or occurring~~ events that occurred at or ~~prior to~~ before the Effective Time; provided, however, that Parent shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for~~ basis, an amount that, in the ~~D&O Insurance in excess of (for any one year) 150~~aggregate, exceeds 250% of the current annual premium paid as of the date hereof by the Company for such insurance as (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 an aggregate cost equal to the Premium Cap. In lieu of the ~~date~~ foregoing, the Company, in consultation with Parent, but only upon the prior written consent of ~~this Agreement;~~ Parent, may (and ~~provided~~at the request of Parent, ~~further, that if~~ the ~~annual premiums of such insurance coverage exceed such amount, Parent~~ Company shall ~~be obligated to~~ use its reasonable best efforts to) obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year prepaid “tail” policy under the Company’s existing directors and officers insurance policy 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, ~~for a cost~~ in the aggregate, does not ~~exceeding~~ exceed the Premium Cap and, in such ~~amount~~case, Parent shall not have any further obligations under this Section 6.7(b), other than to maintain such prepaid “tail” policy. (ec) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of~~ If the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ Surviving Corporation or any of its ~~Subsidiaries~~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 ~~under~~ substantially all of its assets or deposits to any ~~applicable contracts~~ other entity or ~~Law~~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 ~~Surviving~~ Company ~~shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in~~ under this Section ~~6.4~~6.7 shall not be terminated or modified in a manner so as to adversely affect the Company Indemnified Party 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 (Two River Bancorp), Merger Agreement (Oceanfirst Financial Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, ~~Parent and~~ the Surviving Company ~~shall, jointly and severally, indemnify, defend~~ shall indemnify and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each caseharmless, to the ~~fullest~~ full extent ~~permitted~~ provided under ~~applicable Law~~ the Company Certificate and Company Bylaws (~~and Parent and the Surviving Company shall, jointly and severally, pay~~ including advancement of expenses as incurred ~~in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person~~ to the ~~fullest~~ extent permitted under applicable Law)~~. Without limiting the foregoing~~, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, each present and ~~Parent~~ former director and ~~the Surviving Company shall pay all reasonable fees and expenses~~ officer of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to(in each case, ~~fulfill and honor~~ when acting in such capacity) (collectively, the “Indemnified Parties”) against any ~~indemnification, expense advancement~~ costs or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ ~~fees and expenses~~fees), ~~such amounts~~ 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 be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions matters existing or occurring at or prior to the Effective Time, including the transactions contemplated by this Agreement; ~~provided~~provided that the Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Party is not entitled to indemnification. (b) Subject to the following sentence, ~~however~~for a period of six years following the Effective Time, Purchaser will use its commercially reasonable efforts to provide director’s and officer’s liability insurance that ~~Parent~~ 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 (including the transactions contemplated by this Agreement), which insurance will contain at least the same coverage and amounts, and contain terms and conditions no less advantageous to the Indemnified Party as that coverage currently provided by Company; provided that in no event shall ~~not~~ Purchaser be required to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year)~~ 150% of the annual ~~premium~~ premiums paid as of the date hereof by the Company for any such insurance ~~as of~~ (the ~~date of this Agreement~~“Premium Cap”); ~~and~~ 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 ~~premiums~~ premium equal to the Premium Cap. At the option of Purchaser, in consultation with Company, prior to the Effective Time and in lieu of the foregoing, Purchaser or Company may purchase a tail policy for directors’ and officers’ liability insurance on the terms described in the prior sentence (including subject to the Premium Cap) and fully pay for such ~~insurance coverage exceed such amount, Parent shall be obligated to obtain a~~ policy ~~with the greatest coverage available, with respect to facts, acts, events or omissions occurring~~ prior to the Effective Time~~, for a cost not exceeding such amount~~. (ec) ~~In the event~~ Any Indemnified Party wishing to claim indemnification under Section 6.6(a), upon learning of any claim, action, suit, proceeding or investigation described above, will promptly notify Purchaser; provided that ~~Parent, the Surviving Company or any Subsidiary of the Surviving Company, or any of their respective successors or assigns, (i) consolidates with or merges into any other Person and shall~~ failure to so notify will not be the continuing or surviving company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume affect the obligations ~~set forth in this~~ of Purchaser under Section ~~6.4. The provisions of this Section 6.4 are intended~~ 6.6(a) unless and to ~~be for~~ the benefit of, and shall be enforceable by, the parties and each Person entitled to indemnification, exculpation, insurance coverage or expense advancement or any other right pursuant to this Section 6.4, and his, her or its heirs and representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, extent that ~~may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4~~Purchaser is actually prejudiced as a consequence.

Appears in 2 contracts

Samples: Merger Agreement (Camco Financial Corp), Merger Agreement (Huntington Bancshares Inc/Md)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing as of~~ From and after the Final Closing, the Company will (and Purchaser will cause the Company to), indemnify and hold harmless each person who is now, or who has been at any time before the date of this ~~Agreement to indemnification~~Agreement, ~~advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors~~or who becomes before the Final Closing, ~~officers~~ an officer or ~~employees~~ director of the Company or who is or was serving at the request of the Company as a director or officer of another Person (each, a “D&O Indemnified Party”) against all losses, claims, damages, costs, expenses (including attorneys’ fees), liabilities or judgments or amounts that are paid in settlement of or in connection with any claim, action, suit, proceeding, investigation or other legal proceeding, whether civil, criminal, administrative or investigative or investigation (each, a “Claim”), in which a D&O Indemnified Party is, or is threatened to be made, a party or witness or arising out of ~~its Subsidiaries~~ the fact that such person is or was a director or officer of the Company if such Claim pertains to any matter of fact arising, existing or occurring at or before the Final Closing (including the transactions contemplated hereby), regardless of whether such Claim is asserted or claimed before or after the Final Closing, to the fullest extent permitted by applicable Law. All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Final Closing now existing in favor of any D&O Indemnified Party as provided in ~~the Organizational Documents~~ certificates or articles of ~~the Company~~ incorporation or bylaws or operating agreements (or comparable organizational documents), and any ~~such Subsidiary~~existing indemnification agreements, ~~any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company)~~ will continue in full force and effect in accordance with their terms, and ~~Parent~~ will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be ~~unreasonably withheld or delayed)~~amended, and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment repealed or otherwise ~~seek termination with respect to any Proceeding~~ modified for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years ~~following~~ after the ~~Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries~~ Final Closing in any manner that would adversely affect ~~adversely~~ the rights thereunder of such individuals for acts or ~~under the Organizational Documents of the Surviving Company~~ omissions occurring at or ~~any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except~~ prior to the ~~extent required by applicable Law. Parent shall, and shall cause~~ Final Closing or taken at the ~~Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between~~ request the ~~Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time~~Company. (cb) To The Company will (and Purchaser will cause the ~~extent permitted by applicable Law, Parent and the Surviving~~ Company ~~shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses~~to), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement maintain in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with for a ~~claims~~ period of ~~at least~~ six (6) years ~~from~~ after the ~~Effective Time from an insurance carrier with the same or better credit rating as~~ Final Closing, the Company’s ~~current insurance carrier with respect to~~ existing directors’ and officers’ liability ~~insurance, fiduciary liability~~ insurance ~~and employment practices liability insurance in an amount and scope~~ policy (provided the Company may substitute therefor policies of at least ~~as favorable as~~ the ~~Company’s existing policies~~ same coverage and amounts containing terms and conditions that are substantially no less advantageous with respect to ~~matters, acts~~ claims arising from facts or ~~omissions existing or occurring at or~~ events that occurred prior to the ~~Effective Time~~Final Closing and covering persons who are currently covered by such insurance; ~~provided, however,~~ provided that ~~Parent shall~~ the Company will not be ~~required~~ obligated to ~~pay an~~ make aggregate annual premium payments for such six (6)-year period in respect of such policy (or coverage replacing such policy) that exceed, for the ~~D&O Insurance in excess of~~ portion related to Company’s directors and officers, three hundred percent (~~for any one year~~300%) ~~150%~~ of the annual premium ~~paid by the Company for such insurance~~ payments on Company’s policy in effect as of the date of this ~~Agreement; and provided, further, that if~~ Agreement (the ~~annual~~ “Maximum Amount”). If the amount of the premiums of necessary to maintain or procure such insurance coverage ~~exceed such amount~~exceeds the Maximum Amount, ~~Parent shall be obligated~~ the Company will (and Purchaser will cause the Company to) maintain the most advantageous policies of directors’ and officers’ liability insurance obtainable for a premium equal to the Maximum Amount. In lieu of the foregoing, the Company may obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ on or ~~omissions occurring~~ prior to the ~~Effective Time~~Final Closing, ~~for~~ a ~~cost not exceeding such amount~~six (6)-year “tail” prepaid policy providing equivalent coverage to that described in this Section 7.17(b). (ec) In the event ~~that Parent,~~ the ~~Surviving~~ Company ~~or any Subsidiary of the Surviving Company, or any of their respective successors or assigns,~~ (i) consolidates with or merges into any other Person and ~~shall~~ will not be the continuing or surviving ~~company~~ corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, ~~then, in each such case,~~ then the Company will (and Purchaser will cause the Company to) make proper ~~provisions shall be made~~ provision so that ~~the successors and assigns~~ such continuing or surviving corporation or entity or transferee of ~~Parent, the Surviving Company or~~ such ~~Subsidiary of the Surviving Company~~assets, as the case may be, ~~shall~~ will assume the obligations set forth in this Section ~~6.4.~~ 7.17. (d) The provisions of this Section ~~6.4~~ 7.17 are intended to be for the benefit ~~of,~~ of and ~~shall~~ will be enforceable by, ~~the parties~~ each D&O Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage or expense advancement or any other right pursuant to this Section 6.4, and his, her or its~~ their respective heirs and representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4.

Appears in 2 contracts

Samples: Stock Purchase Agreement (AtlasClear Holdings, Inc.), Stock Purchase Agreement (Calculator New Pubco, Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing~~ From and after the Effective Time, to the fullest extent permitted by applicable law, the Surviving Corporation shall indemnify and hold harmless and shall advance expenses as incurred, in each case to the fullest extent (subject to applicable law) such persons are indemnified as of the date of this Agreement by SASR pursuant to ~~indemnification~~the SASR Articles, ~~advancement~~ the SASR Bylaws, the governing or organizational documents of ~~expenses~~ any Subsidiary of SASR and ~~exculpation from Indemnified Liabilities~~ any indemnification agreements in ~~favor~~ existence as of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof ~~or otherwise (which shall be assumed by Parent~~ and disclosed in Section ‎6.7(a) of the ~~Surviving Company) will continue in full force~~ SASR Disclosure Schedule, each present and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a former director or officer of ~~the Company or any of~~ SASR and its Subsidiaries ~~or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation~~(in each case, ~~partnership~~when acting in such capacity) (collectively, ~~limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (~~the “SASR Indemnified ~~Persons~~Parties”) against ~~and from all losses~~any costs or expenses (including reasonable attorneys’ fees), ~~claims, damages, costs~~judgments, fines, ~~penalties~~losses, ~~expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of,~~ damages or liabilities incurred in connection with any threatened or actual ~~Proceeding to which such Indemnified Person is~~claim, ~~was~~ action, suit, proceeding or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacityinvestigation, whether ~~pertaining to any act~~ civil, criminal, administrative or ~~omission occurring or existing prior to~~investigative, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of the fact that such ~~Proceeding and does not include the imposition~~ person is or was a director or officer of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company SASR or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect pertaining to matters, acts or omissions 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 transactions contemplated by this Agreement; provided, that in the case of advancement of expenses, any SASR Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such SASR Indemnified Party is not entitled to indemnification. (b) For a period of six (6) 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 SASR (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 insured) with respect to claims against the present and former directors and officers of SASR 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 ~~Parent~~ the Surviving Corporation shall not be ~~required~~ obligated to ~~pay~~ expend, on an ~~annual premium for the D&O Insurance~~ aggregate basis, an amount in excess of ~~(for any one year) 150~~300% of the current annual premium paid ~~by the Company for such insurance~~ as of the date ~~of this Agreement; and provided, further, that if the annual premiums of~~ hereof by SASR 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 ~~exceed such amount~~available at an annual premium equal to the Premium Cap. In lieu of the foregoing, ~~Parent~~ AUB or SASR, in consultation with, but only upon the consent of AUB, may (and at the request of AUB, SASR shall ~~be obligated to~~ use its reasonable best efforts to) obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six (6)-year “tail” policy under SASR’s existing directors’ and officers’ insurance policy 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, ~~for a cost~~ in the aggregate, does not ~~exceeding such amount~~exceed the Premium Cap. (ec) ~~In the event that Parent, the Surviving Company or any Subsidiary~~ The obligations of the Surviving ~~Company~~Corporation, AUB or ~~any of their respective successors or assigns, (i) consolidates with or merges into any other Person and~~ SASR under this Section 6.7 shall not be terminated or modified after the ~~continuing~~ Effective Time in a manner so as to adversely affect any SASR Indemnified Party or ~~surviving company or entity~~ any other person entitled to the benefit of ~~such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that~~ this Section 6.7 without the ~~successors and assigns of Parent, the Surviving Company or such Subsidiary~~ prior written consent of the ~~Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4.~~ affected SASR Indemnified Party or affected person. (d) The provisions of this Section ~~6.4~~ ‎6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each SASR Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of~~ If the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ Surviving Corporation or any of its ~~Subsidiaries~~successors or assigns (i) consolidates with or merges into any other person and is not the continuing or Surviving Corporation of such consolidation or merger, or ~~under~~ (ii) transfers all or substantially all of its assets or deposits to any ~~applicable contracts~~ other person or ~~Law. Parent and~~ engages in any similar transaction, then in each such case, the Surviving ~~Company shall pay all expenses, including attorneys’ fees,~~ Corporation will cause proper provision to be made so that ~~may be incurred by any Indemnified Person in enforcing~~ the ~~indemnity~~ successors and ~~other~~ assigns of the Surviving Corporation will expressly assume the obligations ~~provided~~ set forth in this Section ~~6.4~~‎6.7.

Appears in 2 contracts

Samples: Merger Agreement (Atlantic Union Bankshares Corp), Merger Agreement (Sandy Spring Bancorp Inc)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing as~~ In the event of ~~the date of this Agreement to indemnification~~any threatened or actual claim, ~~advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors~~action, ~~officers~~ suit, proceeding or ~~employees of the Company~~ investigation, whether civil, criminal or ~~any of its Subsidiaries as provided in the Organizational Documents of the Company or~~ administrative (a “Claim”), including any such ~~Subsidiary,~~ Claim in which any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person individual who is now, or has been at any time prior to the date of this ~~Agreement~~ Agreement, or who becomes prior to the Effective Time, a director or officer of ~~the~~ Company or any of its Subsidiaries or who is or was serving at the request of ~~the~~ Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time person (“Indemnified ~~Liabilities~~Party”), ~~including all Indemnified Liabilities~~ is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining ~~to,~~ to (i) the fact that he or she is or was a director or officer of Company or any of its Subsidiaries (or any such other person) prior to the Effective Time or (ii) this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance Credit Facility or any of the ~~final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing~~transactions contemplated by this Agreement, ~~in the event any such Proceeding is brought~~ whether asserted or ~~threatened to be brought against any Indemnified Persons (whether~~ arising before or after the Effective Time), ~~(i)~~ the ~~Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person,~~ parties shall cooperate and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use ~~its~~ their reasonable best efforts to ~~assist in~~ defend against and respond thereto. Company agrees that it shall not settle or offer to settle any litigation or other legal proceeding commenced prior to or after the ~~defense~~ date hereof against Company or any of its directors or executive officers, by any ~~such matter. With respect~~ stockholder of Company or otherwise, relating to ~~any determination~~ this Agreement or the Merger without the prior written consent of ~~whether any Indemnified Person is entitled to indemnification by~~ Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which ~~approval~~ consent shall not be unreasonably withheld or delayed. (b) All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of any Indemnified Party as provided in their respective certificates or articles of incorporation or bylaws (or comparable organizational documents), and ~~who has not otherwise performed material services for Parent~~any indemnification agreements which are existing as of the date hereof, ~~Surviving Company,~~ shall survive the ~~Company or~~ Merger and shall continue in full force and effect in accordance with their terms. From and after the ~~Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement~~Effective Time, Parent shall ~~not (and Parent~~ or shall cause the Surviving Company ~~not~~ to~~) settle or compromise or consent~~ , to the ~~entry~~ fullest extent a Virginia corporation is permitted as of the date hereof to indemnify its own officers and directors under applicable Law (but subject to any ~~judgment or otherwise seek termination~~ limitations with respect thereto under any Law applicable to Parent or the Surviving Company after the Effective Time), indemnify, defend and hold harmless, and provide advancement of expenses to, each Indemnified Party against all losses, claims, damages, costs, expenses, liabilities or judgments or amounts that are paid in settlement of or in connection with any Claim based in whole or in part on or arising in whole or in part out of the fact that such person is or was a director or officer of Company or any of its Subsidiaries, and pertaining to any ~~Proceeding for which indemnification may be sought by an Indemnified Person pursuant~~ matter existing or occurring, or any acts or omissions occurring, at or prior to the Effective Time, whether asserted or claimed prior to, or at or after, the Effective Time (including matters, acts or omissions occurring in connection with the approval of this Agreement, ~~unless such settlement~~the Credit Facility, ~~compromise, consent~~ the Insurance Subsidiary Purchase Agreement and the consummation of the transactions contemplated hereby or ~~termination includes an unconditional release~~ thereby) or taken at the request of ~~all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person~~Parent pursuant to Section 6.7. (bc) For a period of six (6) years ~~following~~ from and after the Effective Time, Parent shall maintain directors’ and officers’ liability and fiduciary liability insurance policies (“D & O Insurance”) with respect to acts or omissions occurring prior to the Effective Time covering each person now covered by Company’s D & O Insurance with terms with respect to coverage and amount no less favorable than those of such policy or policies in effect on the date hereof; provided, that in no event shall Parent be required to expend per year of coverage more than 200% of the amount currently expended by Company per year of coverage as of the date of this Agreement (the “Maximum Amount”) to maintain or procure insurance coverage pursuant hereto. If, notwithstanding the use of reasonable best efforts to do so, Parent is unable to maintain or obtain the insurance called for by this paragraph, Parent shall promptly obtain as much comparable insurance as is available for the Maximum Amount. The provisions of this paragraph shall be deemed to have been satisfied if, prior to the Effective Time, six- (6-) year prepaid “tail” policies for the D & O Insurance shall have been obtained by Parent or by Company at the direction of Parent with respect to acts or omissions occurring prior to the Effective Time covering each person now covered by Company’s D & O Insurance with terms with respect to coverage and amount no less favorable than those of such policy(ies) in effect on the date hereof. If such prepaid “tail” policies have been obtained prior to the Effective Time, Parent and the Surviving Company shall ~~not amend, repeal or otherwise modify any provision~~ maintain such polices in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person full force and effect to ~~indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall~~their full term, and ~~shall cause the Surviving Company and its Subsidiaries to, fulfill and~~ continue to honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or obligations thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time; provided, however, that Parent shall not be required to pay an annual premium for the D&O Insurance in excess of (for any one year) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amount. (e) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 6.6 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4.

Appears in 2 contracts

Samples: Merger Agreement (Fidelity National Financial, Inc.), Merger Agreement (Landamerica Financial Group Inc)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, Parent shall, and shall cause the Surviving Company ~~shall~~to, ~~jointly and severally~~to the fullest extent permitted by applicable law, indemnify, defend and hold ~~harmless~~ harmless, and provide advancement of expenses to, each ~~Person~~ person who is now, or has been at any time prior to the date ~~of this Agreement~~ hereof or who becomes prior to the Effective Time, a director or officer of ~~the~~ Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise subsidiaries (the “Indemnified ~~Persons~~Parties”) against ~~and from~~ all losses, claims, damages, costs, ~~fines~~expenses, ~~penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities,~~ liabilities or judgments ~~and~~ or amounts that are paid in settlement ~~of,~~ of or ~~incurred~~ in connection with any ~~threatened~~ claim, action, suit, proceeding or ~~actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based,~~ investigation based in whole or in ~~part,~~ part on or ~~arising,~~ arising in whole or in ~~part,~~ part out of the fact that such ~~Person~~ person is or was ~~a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as~~ a director or officer of ~~another corporation~~Company or any subsidiary of Company, ~~partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether~~ and pertaining to any ~~act~~ matter existing or ~~omission occurring~~ occurring, or ~~existing prior to~~any acts or omissions occurring, at or ~~after~~ prior to the Effective ~~Time and~~ Time, whether asserted or claimed prior to, at or ~~after~~ after, the Effective Time (~~“Indemnified Liabilities”)~~including matters, ~~including all Indemnified Liabilities based~~ acts or omissions occurring in ~~whole or in part on, or arising in whole or in part out of, or pertaining to,~~ connection with the approval of this Agreement and the consummation of the transactions contemplated hereby) to the same extent such persons are indemnified or have the ~~Transactions~~right to advancement of expenses as of the date of this Agreement by Company pursuant to Company’s memorandum of association, bye-laws and indemnification agreements and resolutions, if any, in ~~each case, to~~ existence on the ~~fullest extent permitted under applicable Law (~~date hereof with any directors or officers of Company and ~~Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance~~ its subsidiaries. For a period of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or six years after the Effective Time, Parent shall cause to be maintained in effect an extended reporting period for the existing directors’ and officers’ liability insurance maintained by Company with respect to claims arising from facts or events which occurred at or before the Effective Time; provided that Parent shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 200% of the premiums paid as of the date hereof by Company for such insurance (“Company’s Current Premium”), and if such premiums for such insurance would at any time exceed 200% of Company’s Current Premium, then Parent shall cause to be maintained policies of insurance which, in Parent’s good faith determination, provide the maximum coverage available at an annual premium not in excess of 200% of Company’s Current Premium. Parent may satisfy in full its obligations under this Section 0 by acquiring a tail directors’ and officers’ liability insurance policy (i) ~~the Indemnified Persons may retain the~~ that covers each person currently covered by Company’s ~~regularly engaged legal counsel~~ current directors’ and officers’ liability insurance policy for acts or ~~other counsel satisfactory~~ omissions occurring prior to the Effective Time on terms with respect to such ~~Indemnified Person,~~ coverage and ~~Parent and the Surviving Company shall pay all reasonable fees and expenses~~ amounts no less favorable than those of such ~~counsel for~~ policy in effect on the ~~Indemnified Persons as promptly as statements therefor are received~~date of this Agreement, and (ii) in respect of which the ~~Surviving~~ premium for a period until the sixth anniversary of the Effective Time is prepaid at the commencement of such period. At the request of Parent, Company shall ~~use its reasonable best efforts~~ cooperate with Parent to ~~assist in the defense~~ obtain such a tail policy effective as of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, . In the event that Parent ~~and the Surviving Company shall not amend, repeal~~ or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time; provided, however, that Parent shall not be required to pay an annual premium for the D&O Insurance in excess of (for any one year) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amount. (e) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, or any of their respective successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other ~~Person~~ person and ~~shall~~ is not be the continuing or surviving ~~company~~ 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~~person (including by dissolution), then, and in each such case, Parent shall cause proper ~~provisions shall~~ provision to be made so that the successors and assigns of ~~Parent,~~ Parent or the Surviving Company ~~or such Subsidiary of the Surviving Company, as the case may be, shall~~ assume and honor the obligations set forth in this Section ~~6.4~~0. The provisions of this Section ~~6.4~~ 0 (i) are intended to be for the benefit of, and shall be enforceable by, ~~the parties and~~ each ~~Person entitled to indemnification~~Indemnified Party, ~~exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and ~~representatives. The rights of the Indemnified Persons under this Section 6.4~~ 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. Public Announcements. The initial press release regarding the Merger shall be a joint press release and thereafter each of Company and Parent shall, except as may be required by applicable law or by obligations pursuant to any ~~rights~~ listing agreement with or rules of NASDAQ or by request of any Governmental Entity, consult with the other party before issuing any press release or otherwise making any public statement with respect to this Agreement or the transactions contemplated hereby. Company shall provide Parent with its stockholder lists and allow and facilitate Parent’s contact with its stockholders and prospective investors and following a Change in Company Recommendation, such ~~Indemnified Persons~~ contacts may ~~have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law.~~ be made by Parent and its representatives without regard to the ~~Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in~~ foregoing limitations of this Section ~~6.4~~0.

Appears in 2 contracts

Samples: Merger Agreement (CastlePoint Holdings, Ltd.), Merger Agreement (CastlePoint Holdings, Ltd.)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing as~~ In the event of ~~the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers~~ any threatened or ~~employees of the Company or~~ actual Claim against any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person individual who is now, or has been at any time prior to the date of this ~~Agreement~~ Agreement, or who becomes prior to the Effective Time, a director or officer of ~~the Company~~ MCC or any of its Subsidiaries or who is or was serving at the request of ~~the Company~~ MCC or any of its Subsidiaries as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise~~ person (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified LiabilitiesParties”), ~~including all Indemnified Liabilities~~ based in whole or in part on, or arising in whole or in part out of, or pertaining ~~to,~~ to (i) the fact that he or she is or was a director or officer of MCC or any of its Subsidiaries prior to the Effective Time or (ii) this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance any of the ~~final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing~~transactions contemplated by this Agreement, ~~in the event any such Proceeding is brought~~ whether asserted or ~~threatened to be brought against any Indemnified Persons (whether~~ arising before or after the Effective Time, the parties shall cooperate and use their commercially reasonable efforts to defend against and respond thereto. All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time existing on the date of this Agreement in favor of any Indemnified Party as provided in their respective certificates or articles of incorporation or by-laws (or comparable Organizational Documents), and any existing indemnification agreements set forth in Section 7.6 of the MCC Disclosure Schedule (i) as may be modified or amended as provided below), shall, notwithstanding that the ~~Indemnified Persons may retain~~ separate corporate existence of MCC shall cease as of the ~~Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person~~Effective Time, ~~and Parent and~~ survive the Merger as a contractual obligation of the Surviving Company and shall ~~pay all reasonable fees~~ continue in full force and ~~expenses~~ effect in accordance with their terms for a period of ~~such counsel for~~ six (6) years from the ~~Indemnified Persons as promptly as statements therefor are received~~Closing Date, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be ~~unreasonably withheld~~ amended, repealed or ~~delayed~~otherwise modified in any manner that would adversely affect the rights thereunder of such individuals for acts or omissions occurring at or prior to the Effective Time or taken at the request of SIC pursuant to Section 7.7 hereof (provided, that such existing indemnification agreements may be amended prior to the Effective Time as expressly permitted by Section 6.2 of the MCC Disclosure Schedule, if such amendments are in form reasonably acceptable to SIC), ~~and who has not otherwise performed material services for Parent,~~ it being understood that nothing in this sentence shall require any amendment to the articles or certificate of incorporation or bylaws as the Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years ~~following~~ from the ~~Effective Time~~Closing Date, ~~Parent and~~ the Surviving ~~Company~~ Company, shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the fullest extent permitted by ~~applicable~~ Applicable Law, ~~Parent~~ indemnify, defend and ~~the Surviving Company shall indemnify any~~ hold harmless, and provide advancement of expenses to, each Indemnified ~~Person~~ Party against all ~~reasonable costs and expenses (including reasonable attorneys’ fees and~~ losses, Claims, damages, costs, expenses), ~~such~~ liabilities or judgments or amounts ~~to be payable~~ that are paid in ~~advance upon request as provided~~ settlement of or in ~~Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4~~ connection with any Claim based in whole or ~~under any Organizational Documents~~ in part on or arising in whole or in part out of the ~~Company~~ fact that such person is or was a director or officer of MCC or any of its Subsidiaries, and pertaining to any ~~employment agreement~~ matter existing or ~~indemnification agreement in effect on the date hereof~~ occurring, or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, any acts or omissions ~~existing or occurring~~ occurring, at or prior to the Effective Time, whether asserted or claimed prior to, or at or after, 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) or taken at the request of SIC pursuant to Section 7.7 hereof; provided, ~~however,~~ that ~~Parent~~ the Surviving Company (i) shall not be ~~required to pay an annual premium for the D&O Insurance in excess of (~~liable for any ~~one year~~amounts paid in the settlement of any Claim without its prior written consent, which shall not be unreasonably withheld, and (ii) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to ~~obtain a policy with~~ pay the ~~greatest coverage available,~~ fees and expenses of only one counsel for all Indemnified Parties with respect to ~~facts~~any single Claim (each such counsel to be approved in advance by the Surviving Company, ~~acts~~such consent not to be unreasonably withheld) unless the Surviving Company assumes the defense of such Claim, ~~events~~ in which case it shall not be liable for any fees and expenses of counsel to the Indemnified Parties in respect of such Claim; provided that if an Indemnified Party determines in good faith that (a) the use of counsel chosen by the Surviving Company to represent such Indemnified Party would present such counsel with an actual or potential conflict, (b) the named parties in any such claim (including any impleaded parties) include both the Surviving Company and such Indemnified Party and such Indemnified Party shall conclude in good faith that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Surviving Company, (c) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, or (d) or such Indemnified Party has interests in the claim or underlying subject matter that are substantially different from or in addition to those of other Persons against whom the claim has been made or might reasonably be expected to be made, then such Indemnified Party shall be entitled to retain separate counsel (but not more than one law firm, plus, if applicable, local counsel in respect of any particular claim for all indemnitees in such Indemnified Party’s circumstances) at the Surviving Company’s expense to the extent of such counsel’s reasonable fees and expenses. (c) MCC shall, at its sole cost, cause the individuals serving as officers and directors of MCC or any of its Subsidiaries immediately at or prior to the Effective Time to be covered for a period of six years from the Effective Time by the directors’ and officers’ liability insurance policy maintained by MCC through the purchase of so-called “tail” insurance with respect to acts or omissions occurring prior to the Effective ~~Time~~Time that were committed by such officers and directors in their capacity as such. MCC shall be permitted to obtain up to $5 million of additional coverage limits above the coverage limits in its directors’ and officers’ liability insurance policy in connection with the purchase of such “tail” insurance, provided, that the aggregate premium for ~~a cost~~ such additional coverage limits shall not ~~exceeding such amount~~exceed $1 million. (ed) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 7.6 are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Medley Capital Corp), Agreement and Plan of Merger (Sierra Income Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing~~ From and after the Effective Time, the Surviving Corporation shall indemnify and hold harmless and shall advance expenses as incurred, in each case to the extent (subject to applicable Law) such persons are indemnified or entitled to such advancement of expenses as of the date of this Agreement by PACW pursuant to ~~indemnification~~the PACW Charter, ~~advancement~~ PACW Bylaws, the governing or organizational documents of ~~expenses and exculpation from Indemnified Liabilities in favor~~ any Subsidiary of ~~current and/or former directors, officers or employees of the Company~~ PACW or any indemnification agreements in existence as of ~~its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on~~ the date hereof ~~or otherwise (which shall be assumed by Parent~~ that have been made available to BANC, each present and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a former director or officer of ~~the Company or any of~~ PACW and its Subsidiaries ~~or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation~~(in each case, ~~partnership~~when acting in such capacity) (collectively, ~~limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (~~the “PACW Indemnified ~~Persons~~Parties”) against ~~and from all losses~~any costs or expenses (including reasonable attorneys’ fees), ~~claims, damages, costs~~judgments, fines, ~~penalties~~losses, ~~expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of,~~ damages or liabilities incurred in connection with any threatened or actual ~~Proceeding to which such Indemnified Person is~~claim, ~~was~~ action, suit, proceeding or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacityinvestigation, whether ~~pertaining to any act~~ civil, criminal, administrative or ~~omission occurring or existing prior to~~investigative, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of the fact that such ~~Proceeding and does not include the imposition~~ person is or was a director or officer of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company PACW or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts pertaining to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions matters existing or occurring at or prior to the Effective Time~~; provided~~, ~~however, that Parent shall not be required to pay an annual premium for~~ including the ~~D&O Insurance in excess of (for any one year) 150% of the annual premium paid~~ transactions contemplated by ~~the Company for such insurance as of the date of~~ this Agreement; ~~and provided~~provided that in the case of advancement of expenses, ~~further,~~ the PACW Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that ~~if the annual premiums of~~ such ~~insurance coverage exceed such amount, Parent shall be obligated~~ PACW Indemnified Party is not entitled to ~~obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amount~~indemnification. (eb) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each PACW Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of~~ If the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ Surviving Corporation or any of its ~~Subsidiaries~~successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving person of such consolidation or merger, or ~~under~~ (ii) transfers all or substantially all of its assets or deposits to any ~~applicable contracts~~ other person or ~~Law. Parent and~~ engages in any similar transaction, then in each such case the Surviving ~~Company shall pay all expenses, including attorneys’ fees,~~ Corporation will cause proper provision to be made so that ~~may be incurred by any Indemnified Person in enforcing~~ the ~~indemnity~~ successors and ~~other~~ assigns of the Surviving Corporation will expressly assume the obligations ~~provided~~ set forth in this Section ~~6.4~~6.7. The obligations of the Surviving Corporation or any of its successors under this Section 6.7 shall not be terminated or modified after the Effective Time in a manner so as to adversely affect any PACW Indemnified Party or any other person entitled to the benefit of this Section 6.7 without the prior written consent of the affected PACW Indemnified Party or affected person.

Appears in 2 contracts

Samples: Merger Agreement (Pacwest Bancorp), Merger Agreement (Banc of California, Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities (as defined below) in favor of the Company Manager or current and/or former directors, officers or employees of the Company ~~or any of its~~ and the Company Subsidiaries as provided in the Organizational Documents of the Company ~~or any such Subsidiary~~and each of the Company Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise ~~(which shall be assumed by Parent and the Surviving Company)~~ will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent ~~and~~ shall cause the Surviving Company ~~shall, jointly and severally,~~ to indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a director or officer of the Company, the Company Manager or any of their Subsidiaries or who acts as a fiduciary under any Company Plan or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), ~~liabilities,~~ liabilities or judgments ~~and~~ or amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person ~~is, was or becomes~~ is a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a ~~director, officer, employee~~ director or ~~agent~~ officer of the Company, the Company Manager or any of their Subsidiaries, a fiduciary under any Company Plan or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent ~~and the Surviving Company shall, jointly and severally,~~ shall pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section ~~6.4~~6.9, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three (3) years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any ~~Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement~~claim, action, suit, proceeding or investigation, unless such settlement, compromise, consent or termination includes an unconditional release of all of the Indemnified Persons covered by the claim, action, suit, proceeding or investigation from all liability arising out of such ~~Proceeding and does not include the imposition of equitable relief on~~claim, action, suit, proceeding or ~~the admission of fault or wrongdoing by, any Indemnified Person~~investigation. (b) For a period of not less than six (6) years following the Effective Time, ~~Parent and~~ the provisions in the Surviving ~~Company~~ Company’s and its Subsidiaries’ Organizational Documents with respect to indemnification, advancement of expenses and exculpation of current and/or former directors, officers or employees shall ~~not amend~~be no less favorable to such directors, ~~repeal or otherwise modify any provision~~ officers and employees than such contained in the Organizational Documents of the Surviving Company or its ~~Subsidiaries~~ Subsidiaries, as applicable, in effect as of the date hereof, which provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder ~~or under the Organizational Documents of the Surviving Company or any of its Subsidiaries~~ of any ~~Person to indemnification, exculpation and expense advancement~~ such individuals except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior to the Effective Time. (c) To the extent permitted by applicable Law, Parent ~~and~~ shall cause the Surviving Company ~~shall~~ to indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section ~~6.4(a~~6.9(a), relating to the enforcement of such Indemnified Person’s rights under this Section ~~6.4~~ 6.9 or under any ~~Organizational Documents of~~ charter, bylaw or contract in the ~~Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether~~ event such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) ~~Parent and~~ On or prior to the ~~Surviving~~ Closing Date, the Company shall put in place, and ~~Parent shall~~ fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six (6) years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time; provided, however, ~~that Parent shall not be required to pay an annual~~ the aggregate premium for the D&O Insurance ~~in excess of (for any one year) 150~~shall not exceed an amount equal to 300% of the annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the ~~annual premiums~~ premium of such insurance coverage ~~exceed~~ exceeds such amount, ~~Parent~~ the Company shall ~~be obligated to~~ obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amount. (e) The provisions of this Section 6.9 (i) will survive consummation of the Merger; (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Indemnified Persons) to the extent of such indemnified or insured party’s interest herein, and his or her heirs and estates; and (iii) 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. (f) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, or any of their respective successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving ~~company~~ corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section ~~6.4~~6.9. Parent shall cause the Surviving Company not to sell, transfer, distribute or otherwise dispose of any of their assets or the assets of any Subsidiary in a manner that would reasonably be expected to render Parent or the Surviving Company unable to satisfy its obligations under this Section 6.9. The provisions of this Section ~~6.4~~ 6.9 are intended to be for the benefit of, and shall be enforceable by, the parties and each Person entitled to ~~indemnification, exculpation,~~ indemnification or insurance coverage or expense advancement ~~or any other right~~ pursuant to this Section ~~6.4~~6.9, and ~~his,~~ his or her ~~or its~~ heirs and representatives. The rights of the Indemnified Persons under this Section ~~6.4~~ 6.9 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section ~~6.4~~6.9. (g) From and after the Effective Time, Parent shall guarantee the prompt payments of the obligations of the Surviving Corporation under this Section 6.9. (h) Nothing in this Agreement is intended to, or will be construed to, release, waive or impair any rights to insurance claims pursuant to any applicable insurance policy or indemnification agreement, it being understood and agreed that the indemnification provided for in this Section 6.9 is not prior to or in substitution for any such claims pursuant to such policies or agreements.

Appears in 2 contracts

Samples: Merger Agreement (AG Mortgage Investment Trust, Inc.), Merger Agreement (Western Asset Mortgage Capital Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees~~ Without limiting any other rights that ~~all rights existing~~ any Indemnified Person (as ~~of the date of this Agreement~~ defined below) may have pursuant to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoingotherwise, from the Effective Time and ~~after~~ until the six year anniversary of the Effective Time, Parent and the Surviving ~~Company~~ Corporation shall, jointly and severally, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or ~~is or was serving at the request~~ who acts as a fiduciary under any Employee Benefit Plan of the Company or any of its Subsidiaries ~~as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise~~ (the “Indemnified Persons”) against ~~and from~~ all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), ~~liabilities,~~ liabilities or judgments ~~and~~ or amounts that are paid in settlement of(with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred in connection with any threatened or actual ~~Proceeding~~ claim, action, suit, proceeding or investigation to which such Indemnified Person ~~is, was or becomes~~ is a party ~~or is otherwise involved (including as a witness)~~ based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a ~~director~~director or officer of the Company or any of its Subsidiaries, ~~officer, employee or agent~~ a fiduciary under any Employee Benefit Plan of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a ~~director~~ director, officer, employee or ~~officer~~ agent of another corporation, partnership, limited liability company, joint venture, ~~Employee Benefit Plan~~employee benefit plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each ~~case,~~ case to the fullest extent permitted under applicable ~~Law~~ law (and Parent and the Surviving ~~Company~~ Corporation shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such ~~Proceeding~~ claim, action, suit, proceeding or investigation to each Indemnified Person to the fullest extent permitted under applicable ~~Law~~law). Without limiting the foregoing, in the event any such ~~Proceeding~~ claim, action, suit, proceeding or investigation is ~~brought or threatened to be~~ brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to ~~such Indemnified Person~~them, and Parent and the Surviving ~~Company~~ Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) Parent and the Surviving ~~Company~~ Corporation shall use ~~its~~ their reasonable best efforts to assist in the defense of any such matter~~. With respect to~~ , provided, that neither Parent nor the Surviving Corporation shall be liable for any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable settlement effected without its prior written consent (which ~~approval~~ consent shall not be unreasonably ~~withheld~~ withheld, delayed or ~~delayed~~conditioned)~~, and who has not otherwise performed material services for Parent, Surviving Company, the Company or the~~ . Any Indemnified Person ~~within~~ wishing to claim indemnification under this Section 5.6, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the ~~last three years. Notwithstanding anything~~ Surviving Corporation (but the failure so to notify shall not relieve a party from any obligations that it may have under this Section 5.6 except to the ~~contrary contained in this Agreement~~extent such failure materially prejudices such party’s position with respect to such claims) and, if required by law, shall deliver to Parent and the Surviving Corporation an undertaking to repay any amounts advanced to it if it shall ultimately be determined that such Indemnified Person is not entitled to indemnification, but without any requirement for the posting of a bond or any other terms or conditions other than those expressly set forth herein; provided further, that Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be ~~sought by an Indemnified Person~~ obligated pursuant to this ~~Agreement, unless such settlement, compromise, consent or termination includes an unconditional release~~ Section 5.6(a) to pay the fees and disbursements of more than one counsel for all Indemnified Persons ~~from all liability arising out~~ in any single action, unless, in the good faith judgment of any of the Indemnified Persons, there is or may be a conflict of interests between two or more of such ~~Proceeding and does not include the imposition of equitable relief on~~Indemnified Persons, ~~or the admission of fault or wrongdoing by, any Indemnified Person~~in which case there may be separate counsel for each similarly situated group. (b) ~~For a period of six (6) years following the Effective Time~~Notwithstanding Section 1.4, Parent and the Surviving ~~Company~~ Corporation shall not amend, repeal or otherwise modify ~~any provision in~~ the ~~Organizational Documents~~ Certificate of Incorporation or Bylaws of the Surviving ~~Company or its Subsidiaries~~ Corporation in any manner that would affect adversely the rights thereunder or under the ~~Organizational Documents~~ Company Certificate of ~~the Surviving~~ Incorporation or Company ~~or any of its Subsidiaries~~ Bylaws of any Indemnified Person to indemnification, exculpation and ~~expense~~ advancement except to the extent required by ~~applicable Law~~law. Parent shall, and shall cause the Surviving ~~Company and its Subsidiaries~~ Corporation to, fulfill and honor any ~~indemnification, expense advancement~~ indemnification or exculpation agreements between the Company ~~or any of its Subsidiaries~~ and any of its directors, officers or employees existing immediately prior to the Effective Time. (c) ~~To the extent permitted by applicable Law,~~ Parent and the Surviving ~~Company~~ Corporation shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section ~~6.4(a~~5.6(a), relating to the enforcement of such Indemnified Person’s rights under this Section ~~6.4~~ 5.6 or under any ~~Organizational Documents of the Company~~ charter, bylaw or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereundercontract. (d) Parent and the Surviving ~~Company shall~~ Corporation will cause to be put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies ~~(collectively, the “D&O Insurance”)~~ with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability~~ insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time; provided, ~~however,~~ that in no event shall Parent ~~shall not~~ be required to ~~pay an annual premium for~~ spend more than 300% (the ~~D&O Insurance in excess of (for any one year~~“Cap Amount”) ~~150%~~ of the last annual premium paid by the Company ~~for~~ prior to the date hereof (the amount of such ~~insurance as~~ premium being set forth in Schedule 3.1(q) of the ~~date~~ Company Disclosure Letter) for the six years of ~~this Agreement~~coverage under such tail policy; ~~and provided,~~ provided further, that if the ~~annual premiums~~ cost of such insurance ~~coverage exceed such amount~~exceeds the Cap Amount, Parent shall ~~be obligated to obtain a policy with~~ purchase as much coverage as is reasonably obtainable for the ~~greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amount~~Cap Amount. (e) In the event that ~~Parent,~~ Parent or the Surviving ~~Company or any Subsidiary of the Surviving Company,~~ Corporation or any of ~~their respective~~ its successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving ~~company~~ corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of ~~Parent,~~ Parent or the Surviving ~~Company or such Subsidiary of the Surviving Company~~Corporation, as the case may be, shall assume the obligations set forth in this Section ~~6.4~~5.6. The provisions of this Section ~~6.4~~ 5.6 are intended to be for the benefit of, and shall be enforceable by, the parties hereto and each Person entitled to ~~indemnification, exculpation,~~ indemnification or insurance coverage or expense advancement ~~or any other right~~ pursuant to this Section ~~6.4~~5.6, and ~~his, her or its~~ his heirs and representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving ~~Company~~ Corporation shall ~~pay all expenses~~not sell, ~~including attorneys’ fees~~transfer, distribute or otherwise dispose of any of their assets in a manner that ~~may~~ would reasonably be ~~incurred by any Indemnified Person in enforcing the indemnity and other~~ expected to render Parent or Surviving Corporation unable to satisfy their obligations ~~provided in~~ under this Section ~~6.4~~5.6.

Appears in 2 contracts

Samples: Merger Agreement (Huntsman International LLC), Merger Agreement (Hexion Specialty Chemicals, Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing as~~ From and after the Effective Time and ending on the sixth anniversary of the ~~date~~ Effective Time, Parent shall cause the Surviving Corporation to, indemnify, defend and hold harmless (including by advancing expenses) each current and former director, officer and employee of ~~this Agreement to indemnification~~the Company and any of its Subsidiaries and each person who served as a director, ~~advancement~~ officer, member, trustee or fiduciary of ~~expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors~~another corporation, ~~officers~~ partnership, joint venture, trust, pension or ~~employees~~ other employee benefit plan or enterprise if such service was at the request or for the benefit of the Company or any of its Subsidiaries ~~as provided in the Organizational Documents of the Company or any such Subsidiary~~(each, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their termsan “Indemnified Party” and, ~~and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing~~collectively, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified ~~Persons~~Parties”) against ~~and from~~ all claims, liabilities, losses~~, claims~~, damages, ~~costs~~judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including ~~attorneys’ and other professionals’~~ fees and ~~expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred~~ expenses of legal counsel) in connection with any actual or threatened claim, suit, action, proceeding or ~~actual Proceeding~~ investigation (whether civil, criminal, administrative or investigative) (each, a “Claim”), whenever asserted, arising out of, relating to ~~which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole~~ or in ~~part, on~~ connection with any action or ~~arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of~~ omission relating to their position with the Company or ~~any of~~ its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or ~~existing prior to,~~ alleged to have occurred before or at ~~or after the Effective Time and whether asserted or claimed prior to, at or after~~ the Effective Time (~~“Indemnified Liabilities”),~~ including ~~all Indemnified Liabilities based~~ any Claim relating in whole or in part ~~on, or arising in whole or in part out of, or pertaining to, this~~ to the Agreement or the Transactions~~, in each case~~), to the fullest extent permitted under applicable ~~Law~~ Law. Each of (~~and Parent~~ x) the Company Charter, the Company Bylaws and the ~~Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance~~ respective organizational documents of each of the ~~final disposition~~ Company’s Subsidiaries as currently in effect, (y) any indemnification agreements with an Indemnified Party listed on Section 6.6(a) of ~~any such Proceeding to~~ the Company Disclosure Letter, which shall in each ~~Indemnified Person~~ case survive the Transactions and continue in full force and effect to the ~~fullest~~ extent permitted ~~under~~ by applicable Law and (z) the respective organizational documents of the Company’s Subsidiaries as currently in effect shall not, for a period of six years from the Effective Time, be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnified Parties except, in the case of clauses (x) and (z), as required by applicable Law). Without limiting the foregoing, ~~in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after~~ at the Effective Time), ~~(i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and~~ the Surviving ~~Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received~~Corporation shall, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving ~~Company not to) settle or compromise or consent~~ Corporation to cause the certificate of incorporation and by-laws of the Surviving Corporation to include provisions for limitation of liabilities of directors and officers, indemnification, advancement of expenses and exculpation of the Indemnified Parties no less favorable to the ~~entry~~ Indemnified Parties than as set forth in the Company Charter and Company Bylaws in effect on the date of ~~any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to~~ this Agreement, ~~unless such settlement~~which provisions shall, ~~compromise~~for a period of six years from the Effective Time, ~~consent~~ not be amended, repealed or ~~termination includes an unconditional release~~ otherwise modified in a manner that would adversely affect the rights thereunder of ~~all~~ the Indemnified ~~Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person~~Parties except as required by applicable Law. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior 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 ~~(collectively, the “D&O Insurance”)~~ 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,~~ insurance and fiduciary liability insurance (the “D&O Insurance”) 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 shall have terms, conditions, retentions and ~~employment practices liability insurance in an amount and scope~~ levels of coverage at least as favorable as the Company’s existing ~~policies~~ D&O Insurance with respect to ~~matters, acts or omissions~~ matters existing or occurring at or prior to the Effective ~~Time~~Time (including in connection with this Agreement and the Transactions); provided, however, that the maximum aggregate premium for such insurance policies for any such year shall not be in excess of the Maximum Premium. Parent shall ~~not~~ 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 shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect, at no expense to the Indemnified Parties, for a period of at least six 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 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 insurance carrier with respect to the Company’s existing D&O Insurance with terms, conditions, retentions and with 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 neither Parent nor the Surviving Corporation shall be required to pay an ~~annual~~ aggregate premium for ~~the D&O Insurance~~ such insurance policies in excess of ~~(for any one year) 150~~300% of the annual premium paid by the Company for coverage for its last full fiscal year for such insurance ~~as of~~ (the ~~date of this Agreement~~“Maximum Premium”); and provided, further, that if the ~~annual~~ premiums of such insurance coverage exceed such amount, Parent or the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage ~~available, with respect to facts, acts, events or omissions occurring prior to the Effective Time,~~ available for a cost not exceeding such amount. (ec) The provisions of this Section 6.6 are (i) 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 (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 contract or otherwise. (d) In the event that Parent, the Surviving ~~Company or any Subsidiary of the Surviving Company,~~ Corporation or any of their respective successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other Person and ~~shall~~ is not be the continuing or surviving ~~company~~ 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 ~~provisions~~ provision shall be made so that the successors and assigns of ~~Parent,~~ Parent and the Surviving ~~Company or such Subsidiary~~ Corporation shall assume all of the ~~Surviving Company, as the case may be, shall assume the~~ obligations thereof set forth in this Section 6.4. The provisions of this Section 6.4 are intended to be for the benefit of, and shall be enforceable by, the parties and each Person entitled to indemnification, exculpation, insurance coverage or expense advancement or any other right pursuant to this Section 6.4, and his, her or its heirs and representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.46.6.

Appears in 2 contracts

Samples: Merger Agreement (Solutia Inc), Merger Agreement (Eastman Chemical Co)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, each of Parent and the Surviving ~~Company shall, jointly and severally, indemnify, defend~~ Corporation shall indemnify and hold ~~harmless each Person who is now~~harmless, ~~or has been at any time prior~~ to the ~~date~~ fullest extent permitted by applicable law, each present and former director, officer or employee of ~~this Agreement~~ the Company and its Subsidiaries (in each case, when acting in such capacity) (collectively, the “Company Indemnified Parties”) against any costs or ~~who becomes prior to~~ expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, whether arising before 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~~ director, officer or ~~officer~~ employee of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against~~ person and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions 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 transactions contemplated by this Agreement; ~~provided~~and Parent and the Surviving Corporation shall also advance expenses as incurred by such Company Indemnified Party to the fullest extent permitted by applicable law; provided that the Company Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Company Indemnified Party is not entitled to indemnification. Parent and the Surviving Corporation shall reasonably cooperate with the Company Indemnified Party, ~~however~~and the Company Indemnified Party shall reasonably cooperate with Parent and the Surviving Corporation, in the defense of any such claim, action, suit, proceeding or investigation. (b) For a period of six (6) years after the Effective Time, Parent shall, or shall cause the Surviving Corporation to, maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the 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 which are no less advantageous to the insured) with respect to claims against the present and former officers and directors of the Company 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 Parent shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~300% of the current annual premium paid as of the date hereof by the Company for such insurance as (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 available at an annual premium equal to the Premium Cap. In lieu of the ~~date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount~~foregoing, Parent ~~shall be obligated to obtain a policy~~ may (and with the ~~greatest coverage available~~prior written consent of Parent, ~~with respect to facts, acts, events~~ the Company may use its reasonable best efforts to) obtain at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year “tail” policy under the Company’s existing directors and officers insurance policy 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, ~~for~~ in the aggregate, does not exceed the Premium Cap. If Parent or the Company purchases such a ~~cost not exceeding~~ “tail policy,” Parent or the Surviving Corporation shall maintain such ~~amount~~“tail policy” in full force and effect and continue to honor its obligations thereunder. (ec) ~~In the event that Parent, the Surviving Company or any Subsidiary~~ The obligations of the Surviving ~~Company~~Corporation, ~~or any of their respective successors or assigns, (i) consolidates with or merges into any other Person~~ Parent and the Company under this Section 6.7 shall not be terminated or modified after the ~~continuing~~ Effective Time in a manner so as to adversely affect any Company Indemnified Party or ~~surviving company or entity~~ any other person entitled to the benefit of ~~such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that~~ this Section 6.7 without the ~~successors and assigns of Parent, the Surviving Company or such Subsidiary~~ prior written consent of the ~~Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4.~~ affected Company Indemnified Party or affected person. (d) The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of~~ If the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ Surviving Corporation or any of its ~~Subsidiaries~~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 ~~under~~ substantially all of its assets or deposits to any ~~applicable contracts~~ other entity or ~~Law. Parent and~~ engage in any similar transaction, then in each case to the ~~Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing~~ extent the ~~indemnity and other~~ obligations ~~provided~~ set forth in this Section ~~6.4~~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 Surviving Corporation will expressly assume the obligations set forth in this Section 6.7.

Appears in 2 contracts

Samples: Merger Agreement (FCB Financial Holdings, Inc.), Merger Agreement (Synovus Financial Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) Each of the Surviving Corporation and Parent agrees that all ~~rights~~ rights, existing as of the date ~~of this Agreement~~ hereof, to indemnification, advancement of expenses and exculpation from ~~Indemnified Liabilities~~ liabilities for acts or omissions occurring at or prior to the Effective Time in favor of the current ~~and/or~~ or former directors, officers or employees of the Company or any of its Subsidiaries as provided in ~~the Organizational Documents~~ their respective certificates of incorporation or by-laws (or comparable organizational documents) or in any indemnification, employment or other similar agreements of the Company or any ~~such Subsidiary~~of its Subsidiaries set forth in Schedule 7.7 of the Company Disclosure Letter, ~~any employment agreement or indemnification agreement~~ in each case as in effect on the date ~~hereof or otherwise (which~~ of this Agreement, shall ~~be assumed by Parent and the Surviving Company) will~~ continue in full force and effect in accordance with their terms~~, and Parent will cause the Surviving Company to perform its respective obligations thereunder~~. ~~Without limiting the foregoing, from~~ From and after the Effective Time, ~~Parent and~~ the Surviving ~~Company shall, jointly and severally, indemnify, defend~~ Corporation shall indemnify and hold harmless each ~~Person~~ individual who is ~~now, or has been at any time prior to~~ as of the date of this ~~Agreement~~ Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company of any of its Subsidiaries as a director or officer of another Person (all of the foregoing, collectively, the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (“Losses”), incurred or arising in connection with any claim, action, investigation, suit or proceeding, whether civil, criminal, regulatory, administrative or investigative (including with respect to matters existing or occurring or alleged to have existed or occurred at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust~~ Person or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission ~~occurring or existing prior to~~by such Company Indemnified Party while serving in such capacity, ~~at or after the Effective Time and~~ whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each caseTime, to the fullest extent permitted under ~~applicable Law~~ Applicable Law. In the event of any such claim, action, investigation, suit or proceeding, (~~and Parent and the Surviving~~ x) each Company ~~shall, jointly and severally, pay~~ Indemnified Party will be entitled to advancement of expenses incurred in ~~connection therewith in advance of~~ the ~~final disposition~~ defense of any such ~~Proceeding~~ claim, action, investigation, suit or proceeding from the Surviving Corporation within ten (10) Business Days of receipt by the Surviving Corporation from the Company Indemnified Party of a request therefor; provided, that any person to ~~each Indemnified Person~~ whom expenses are advanced provides an undertaking, if and only to the ~~fullest~~ extent ~~permitted under applicable Law). Without limiting~~ required by the ~~foregoing~~DGCL, ~~in the event any~~ to repay such ~~Proceeding~~ advances if it is ~~brought or threatened~~ ultimately determined that such person is not entitled to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, indemnification and (iiy) the Surviving ~~Company~~ Corporation shall ~~use its reasonable best efforts to assist~~ cooperate in the defense of any such matter. ~~With respect~~ Any Company Indemnified Party wishing to ~~any determination of whether any Indemnified Person is entitled to~~ claim indemnification ~~by Parent or Surviving Company~~ under this Section ~~6.4~~7.7, ~~such Indemnified Person~~ upon learning of any threatened or actual claim, action, suit, demand, proceeding or investigation, shall ~~have~~ promptly notify the ~~right~~ Company and, if so learning after the Effective Time, the Surviving Corporation thereof in writing; provided, that the failure promptly to ~~require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval~~ so notify in writing shall not ~~be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent,~~ affect the obligations of the Surviving ~~Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything~~ Corporation except to the ~~contrary contained in this Agreement~~extent, ~~Parent shall not (and Parent shall cause the Surviving Company not to) settle~~ if any, that it is materially prejudiced by such failure or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Persondelay. (b) ~~For a period of six (6) years following~~ In the ~~Effective Time,~~ event that Parent ~~and~~ or the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company Corporation or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time; provided, however, that Parent shall not be required to pay an annual premium for the D&O Insurance in excess of (for any one year) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amount. (e) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, or any of their respective successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other Person and ~~shall~~ is not be the continuing or ~~surviving company~~ 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, the Surviving Corporation shall cause proper ~~provisions shall~~ provision to be made so that the successors and assigns of ~~Parent,~~ the Surviving ~~Company or such Subsidiary of the Surviving Company, as the case may be, shall~~ Corporation assume the obligations set forth in this Section ~~6.4~~7.7. (c) For a period of six years from and after the Effective Time, the Surviving Corporation shall (i) cause to be maintained in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company or its Subsidiaries or (ii) provide substitute polices for the Company and its current and former directors and officers (and any individual who becomes an officer or director prior to the Effective Time) who are currently (or prior to the Effective Time become) covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company in either case, of not less than the amount of existing coverage and have other terms and from carriers not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time, except that in no event shall the Surviving Corporation be required to pay with respect to such insurance policies in respect of any one policy year more than 300% of the annual premium payable by the Company for such insurance for the year ended December 31, 2016 (such 300% amount, the “Maximum Amount”), and if the Surviving Corporation is unable to obtain the insurance required by this Section 7.7 it shall obtain as much comparable insurance as possible for the years within such six-year period for an annual premium equal to the Maximum Amount, in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date, Parent may direct that the Company, in which case the Company shall, purchase a “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers (and any individual who becomes an officer or director prior to the Effective Time) who are currently (or prior to the Effective Time become) covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company. In the event the Company purchases such tail coverage, the Surviving Corporation shall cease to have any obligations under the first sentence of this Section 7.7(c). (d) The provisions of this Section ~~6.4~~ 7.7, (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and ~~shall~~ will be enforceable by, each indemnified or insured party (including the ~~parties and each Person entitled to indemnification~~Company Indemnified Parties), ~~exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and ~~representatives. The rights of the Indemnified Persons under this Section 6.4~~ (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any ~~rights~~ such ~~Indemnified Persons~~ Person may have ~~under the Organizational Documents of the Company~~ by contract or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4otherwise.

Appears in 2 contracts

Samples: Merger Agreement (Virtu Financial, Inc.), Merger Agreement (KCG Holdings, Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing as~~ In the event of ~~the date of this Agreement to indemnification~~any threatened or actual claim, ~~advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors~~action, ~~officers~~ suit, proceeding or ~~employees of the Company~~ investigation, whether civil, criminal or ~~any of its Subsidiaries as provided in the Organizational Documents of the Company or~~ administrative (a “Claim”), including any such ~~Subsidiary,~~ Claim in which any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person individual who is now, or has been at any time prior to the date of this ~~Agreement~~ Agreement, or who becomes prior to the Effective Time, a director or officer of ~~the~~ Company or any of its Subsidiaries or who is or was serving at the request of ~~the~~ Company or any of its Subsidiaries as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise~~ person (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified LiabilitiesParties”), ~~including all Indemnified Liabilities~~ is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining ~~to,~~ to (i) the fact that he or she is or was a director or officer of Company or any of its Subsidiaries prior to the Effective Time or (ii) this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance any of the ~~final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing~~transactions contemplated by this Agreement, ~~in the event any such Proceeding is brought~~ whether asserted or ~~threatened to be brought against any Indemnified Persons (whether~~ arising before or after the Effective Time), ~~(i)~~ the ~~Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person,~~ parties shall cooperate and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use ~~its reasonable~~ their best efforts to ~~assist~~ defend against and respond thereto. All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in ~~the defense~~ favor of any ~~such matter. With respect to~~ Indemnified Party as provided in their respective certificates or articles of incorporation or by-laws (or comparable organizational documents), and any ~~determination~~ existing indemnification agreements set forth in Section 6.7 of ~~whether any Indemnified Person is entitled to indemnification by Parent or Surviving~~ the Company ~~under this Section 6.4~~Disclosure Schedule, ~~such Indemnified Person~~ shall ~~have~~ survive the ~~right to require that such determination be made by special~~Merger and shall continue in full force and effect in accordance with their terms, ~~independent legal counsel selected by the Indemnified Person~~ and ~~approved by Parent or Surviving Company, as applicable (which approval~~ shall not be ~~unreasonably withheld~~ amended, repealed or ~~delayed)~~otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of such individuals for acts or omissions occurring at or prior to the Effective Time or taken at the request of Parent pursuant to Section 6.8 hereof, ~~and who has not otherwise performed material services for Parent,~~ it being understood that nothing in this sentence shall require any amendment to the certificate of incorporation or by-laws of the Surviving Company. (b) From and after the Effective Time, ~~the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and~~ Parent shall cause the Surviving Company ~~not~~ to~~) settle or compromise or consent~~ , to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the fullest extent permitted by applicable ~~Law~~law, ~~Parent~~ indemnify, defend and ~~the Surviving Company shall indemnify any~~ hold harmless, and provide advancement of expenses to, each Indemnified ~~Person~~ Party against all ~~reasonable costs and expenses (including reasonable attorneys’ fees and~~ losses, claims, damages, costs, expenses), ~~such~~ liabilities or judgments or amounts ~~to be payable~~ that are paid in ~~advance upon request as provided~~ settlement of or in ~~Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4~~ connection with any Claim based in whole or ~~under any Organizational Documents~~ in part on or arising in whole or in part out of the fact that such person is or was a director or officer of Company or any of its Subsidiaries, and pertaining to any ~~employment agreement~~ matter existing or ~~indemnification agreement in effect on the date hereof~~ occurring, or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, any acts or omissions ~~existing or occurring~~ occurring, at or prior to the Effective Time~~; provided~~, ~~however~~whether asserted or claimed prior to, or at or after, 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) or taken at the request of Parent pursuant to Section 6.8 hereof. (c) Parent shall cause the individuals serving as officers and directors of Company or any of its Subsidiaries immediately prior to the Effective Time to be covered for a period of six years from the Effective Time by the directors’ and officers’ liability insurance policy maintained by Company (provided that Parent ~~shall~~ may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are not ~~be required to pay an annual premium for the D&O Insurance in excess of (for any one year~~less advantageous than such policy) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to ~~facts, acts, events~~ acts or omissions occurring prior to the Effective ~~Time~~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 250% of the annual premiums currently paid by Company (which current amount is set forth in Section 6.7 of the Company Disclosure Schedule) for such insurance (the “Insurance Amount”), and provided further that if Parent is unable to maintain such policy (or such substitute policy) as a result of the preceding proviso, Parent shall obtain as much comparable insurance as is available for ~~a cost not exceeding such amount~~the Insurance Amount. (ed) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4.

Appears in 1 contract

Samples: Merger Agreement (Countrywide Financial Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, Parent ~~and the Surviving Company~~ shall, ~~jointly and severally~~for a period of six (6) years from the Closing Date, to the fullest extent permitted by Applicable Legal Requirements, indemnify, defend and hold ~~harmless~~ harmless, and provide advancement of expenses to, each ~~Person~~ person who is now, or has been at any time prior to the date ~~of this Agreement~~ hereof or who becomes prior to the Effective Time, a an officer, director or ~~officer~~ employee of ~~the~~ Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified ~~Persons~~Parties”) against ~~and from~~ all losses, claims, damages, costs, ~~fines~~expenses, ~~penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities,~~ liabilities or judgments ~~and~~ or amounts that are paid in settlement ~~of,~~ of or ~~incurred~~ in connection with any ~~threatened~~ claim, action, suit, proceeding or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities investigation based in whole or in part ~~on,~~ on or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require fact that such ~~determination be made by special~~person is or was a director, ~~independent legal counsel selected by the Indemnified Person and approved by Parent~~ officer or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry employee of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any Subsidiary of ~~its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall~~Company, and ~~shall cause the Surviving Company and its Subsidiaries to~~pertaining to any matter existing or occurring, ~~fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company~~ or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions ~~existing or~~ occurring at or prior to the Effective Time, whether asserted or claimed prior to, or at or after, 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) (“Indemnified Liabilities”). (b) Prior to the Effective Time, Company shall purchase a “tail” policy or “extended discovery period” under Company’s existing directors and officers liability insurance policy providing coverage for a period of up to six (6) years after the Effective Time, or with the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed), comparable coverage for a substantially comparable insurer; provided, however, that ~~Parent~~ the total cost of any extended insurance coverage purchased by Company shall not ~~be required to pay an annual premium for the D&O Insurance in excess of (for any one year) 150~~exceed 250% of the current annual premium paid by ~~the~~ Company ~~for such~~ under its existing directors and officers liability insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amountpolicy. (ec) In Parent shall indemnify an Indemnified Party for all expenses, including reasonable fees and expenses of counsel, that an Indemnified Party may incur in successfully enforcing the ~~event that Parent, the Surviving Company or any Subsidiary of the Surviving Company,~~ indemnity and other obligations provided for in this Section 5.7. (d) If Parent or any of ~~their respective~~ its successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving ~~company~~ 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, proper ~~provisions~~ provision shall be made so that the successors and assigns of ~~Parent,~~ the Surviving ~~Company or such Subsidiary of the Surviving Company~~Bank, as the case may be, shall assume the obligations set forth in this Section ~~6.4.~~ 5.7. (e) The provisions of this Section ~~6.4~~ 5.7 (i) are intended to be for the benefit of, and shall be enforceable by, ~~the parties and~~ each ~~Person entitled to indemnification~~Indemnified Party, ~~exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and ~~representatives. The rights of the Indemnified Persons under this Section 6.4~~ representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any ~~rights~~ such ~~Indemnified Persons~~ Person may have ~~under the Organizational Documents of the Company~~ by contract or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4otherwise.

Appears in 1 contract

Samples: Merger Agreement (First Choice Bancorp)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, ~~Parent and~~ the Surviving ~~Company shall, jointly and severally, indemnify, defend~~ Entity shall indemnify and hold harmless and shall advance expenses as incurred, in each ~~Person who is now~~case, ~~or has been at any time prior~~ to the ~~date~~ fullest extent permitted by applicable law, the Cadence Articles, the Cadence Bylaws and the governing or organizational documents of ~~this Agreement~~ any Cadence Subsidiary, each present and former director, officer or ~~who becomes prior to~~ employee of Cadence and its Subsidiaries (in each case, when acting in such capacity) (collectively, the “Cadence Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, whether arising before or after the Effective Time, arising out of, or pertaining to, the fact that such person is or was a ~~director~~ director, officer or ~~officer~~ employee of ~~the Company~~ Cadence or any of its Subsidiaries or is or was serving at the request of ~~the Company~~ Cadence or any of its Subsidiaries as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against~~ person and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions 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 transactions contemplated by this Agreement; provided, that in the case of advancement of expenses, any Cadence Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Cadence Indemnified Party is not entitled to indemnification. The Surviving Entity shall reasonably cooperate with the Cadence Indemnified Parties, and the Cadence 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 and other rights provided in this clause (a), all rights to indemnification and all limitations on liability existing in favor of the Cadence 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. (b) For a period of six (6) years after the Effective Time, the Surviving Entity shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance maintained by Cadence (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 insured) with respect to claims against the present and former officers and directors of Cadence 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 ~~Parent~~ the Surviving Entity shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~300% of the current annual premium paid ~~by the Company for such insurance~~ as of the date ~~of this Agreement; and provided, further, that if the annual premiums of~~ hereof by Cadence 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 ~~exceed such amount~~available at an annual premium equal to the Premium Cap. In lieu of the foregoing, ~~Parent~~ BancorpSouth or Cadence, in consultation with, but only upon the consent, of BancorpSouth, may (and at the request of BancorpSouth, Cadence shall ~~be obligated to~~ use its reasonable best efforts to) obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six (6)-year “tail” policy under Cadence’s existing directors’ and officers’ insurance policy 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, ~~for a cost~~ in the aggregate, does not ~~exceeding such amount~~exceed the Premium Cap. (ec) ~~In the event that Parent, the Surviving Company or any Subsidiary~~ The obligations of the Surviving ~~Company~~Entity, BancorpSouth or ~~any of their respective successors or assigns, (i) consolidates with or merges into any other Person and~~ Cadence under this Section 6.8 shall not be terminated or modified after the ~~continuing~~ Effective Time in a manner so as to adversely affect any Cadence Indemnified Party or ~~surviving company or entity~~ any other person entitled to the benefit of ~~such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that~~ this Section 6.8 without the ~~successors and assigns of Parent, the Surviving Company or such Subsidiary~~ prior written consent of the ~~Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4.~~ affected Cadence Indemnified Party or affected person. (d) The provisions of this Section ~~6.4~~ 6.8 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Cadence Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of~~ If the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ Surviving Entity or any of its ~~Subsidiaries~~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 ~~under~~ (ii) transfers all or substantially all of its assets or deposits to any ~~applicable contracts~~ other person or ~~Law. Parent and~~ engages in any similar transaction, then in each such case, the Surviving ~~Company shall pay all expenses, including attorneys’ fees,~~ Entity will cause proper provision to be made so that ~~may be incurred by any Indemnified Person in enforcing~~ the ~~indemnity~~ successors and ~~other~~ assigns of the Surviving Entity will expressly assume the obligations ~~provided~~ set forth in this Section ~~6.4~~6.8.

Appears in 1 contract

Samples: Merger Agreement (Cadence Bancorporation)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, ~~Parent and~~ the Surviving ~~Company shall, jointly and severally, indemnify, defend~~ Corporation shall indemnify and hold ~~harmless each Person who is now~~harmless, ~~or has been at any time prior~~ to the ~~date~~ fullest extent permitted by applicable Law, each present and former director or officer of ~~this Agreement~~ the Company and its Subsidiaries (in each case, when acting in such capacity) (collectively, the “Company Indemnified Parties”) against any costs or ~~who becomes prior to~~ expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, whether arising before 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 or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against~~ person and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions 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 transactions contemplated by this Agreement; and the Surviving Corporation shall also advance expenses as incurred by such Company Indemnified Party to the fullest extent permitted by applicable Law; provided, ~~however~~that the Company Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Company Indemnified Party is not entitled to indemnification. Parent and the Surviving Corporation shall reasonably cooperate with the Company Indemnified Party, and the Company Indemnified Party shall reasonably cooperate with the Parent and the Surviving Corporation, in the defense of any such claim, action, suit, proceeding or investigation. (b) For a period of six (6) 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 the Company (provided, that ~~Parent~~ 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 insured) with respect to claims against the present and former officers and directors of the Company 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, that the Surviving Corporation shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~300% 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 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, the Company, with the prior consent of Parent (not to be unreasonably withheld), 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 (6)-year “tail” policy under the Company’s existing directors and officers insurance policy providing coverage equivalent to the current policies of directors’ and officers’ liability insurance maintained by the Company as of the date hereof 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 the Company purchases such a “tail policy,” Surviving Corporation shall maintain such “tail policy” in full force and effect and continue to honor its obligations thereunder. (c) Any Company Indemnified Party wishing to claim indemnification under this Section 6.6, upon learning of any claim, action, suit, proceeding or investigation described above, will promptly notify the Surviving Corporation; provided, that failure to so notify will not affect the obligations of the Surviving Corporation under this Section 6.6 unless and to the extent that the Surviving Corporation is actually prejudiced as a consequence. (d) The obligations of the Surviving Corporation, Parent and the Company under this Section 6.6 shall not be terminated or modified after the Effective Time in a manner so as to adversely affect any Company Indemnified Party or any other person entitled to the benefit of this ~~Agreement; and provided, further, that if~~ Section 6.6 without the ~~annual premiums~~ prior written consent of ~~such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with~~ the ~~greatest coverage available, with respect to facts, acts, events~~ affected Company Indemnified Party or ~~omissions occurring prior to the Effective Time, for a cost not exceeding such amount~~affected person. (e) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 6.6 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of~~ If the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ Surviving Corporation or any of its ~~Subsidiaries~~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 ~~under~~ substantially all of its assets or liabilities to any ~~applicable contracts~~ other entity or ~~Law. Parent and~~ engage in any similar transaction, then in each case to the ~~Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing~~ extent the ~~indemnity and other~~ obligations ~~provided~~ set forth in this Section ~~6.4~~6.6 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 Surviving Corporation will expressly assume the obligations set forth in this Section 6.6.

Appears in 1 contract

Samples: Merger Agreement (EverBank Financial Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing~~ From and after the Effective Time, Purchaser shall indemnify and hold harmless, to the fullest extent permitted by applicable law, the Company Charter or Company Bylaws as of in effect on the date of this Agreement ~~to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers~~ or ~~employees of~~ any agreements providing for indemnification by the Company or any of its ~~Subsidiaries as provided in the Organizational Documents~~ Subsidiaries, each present and former director, officer or employee of the Company and its Subsidiaries (in each case, when acting in such capacity) (collectively, the “Company Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection with any ~~such Subsidiary~~threatened or actual claim, ~~any employment agreement~~ action, suit, proceeding or ~~indemnification agreement in effect on the date hereof~~ investigation, whether civil, criminal, administrative or ~~otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms~~investigative, ~~and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and~~ whether arising before or after the Effective Time, ~~Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now~~arising in whole or in part out of, or ~~has been at any time prior to~~ pertaining to, the ~~date of this Agreement~~ fact that such person is or ~~who becomes prior to the Effective Time~~was a director, ~~a director~~ officer or ~~officer~~ employee of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against~~ person and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time, including matters, acts or omissions occurring in connection with the consideration and approval of this Agreement and the transactions contemplated by this Agreement. The right to indemnification shall also include the right to the advancement of expenses as incurred by such Company Indemnified Party, and the right to reimbursement of expense incurred to enforce the right to indemnification and advancement of expenses, to the fullest extent provided in the Company Charter or Company Bylaws as in effect on the date of this Agreement or any agreements providing for indemnification by the Company or any of its Subsidiaries. (b) For a period of six (6) years after the Effective Time, Purchaser shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance maintained by the Company (provided, that Purchaser 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 insured) with respect to claims against the present and former officers and directors of the Company 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, ~~however,~~ that ~~Parent~~ Purchaser shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~300% of the current annual premium paid as of the date hereof by the Company for such insurance as (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then Purchaser shall cause to be maintained policies of insurance which, in Purchaser’s good faith determination, provide the maximum coverage available at an annual premium equal to the Premium Cap. In lieu of the ~~date of this Agreement; and provided~~foregoing, ~~further, that if~~ the ~~annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy~~ Purchaser or (with the ~~greatest coverage available, with respect to facts, acts, events~~ Purchaser’s permission) the Company may obtain at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year “tail” policy under the Company’s existing directors and officers insurance policy 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, ~~for~~ in the aggregate, does not exceed the Premium Cap. If the Purchaser or Company purchases such a ~~cost not exceeding~~ “tail policy,” Purchaser shall maintain such ~~amount~~“tail policy” in full force and effect from and after the Effective Time and continue to honor its obligations thereunder. (ec) ~~In the event that Parent, the Surviving Company or any Subsidiary~~ The obligations of the ~~Surviving Company, or any of their respective successors or assigns, (i) consolidates with or merges into any other Person~~ Purchaser and the Company under this Section 6.7 shall not be terminated or modified after the ~~continuing~~ Effective Time in a manner so as to adversely affect any Company Indemnified Party or ~~surviving company~~ any other person entitled to the benefit of this Section 6.7 without the prior written consent of the affected Company Indemnified Party or ~~entity~~ affected person. The rights of ~~such consolidation or merger or (ii) transfers all or substantially all of its properties and assets~~ each Company Indemnified Party under this Section 6.7 shall be in addition to any ~~Person~~rights such person may have under the MGCL, ~~then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company~~ any other applicable law or ~~such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4.~~ agreement. (d) The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ If Purchaser or any of its ~~Subsidiaries~~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 ~~under~~ substantially all of its assets or deposits to any ~~applicable contracts~~ other entity or ~~Law. Parent~~ engage in any similar transaction, then in each case, Purchaser will cause proper provision to be made so that the successors and assigns of Purchaser will expressly assume the ~~Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other~~ obligations ~~provided~~ set forth in this Section ~~6.4~~6.7.

Appears in 1 contract

Samples: Merger Agreement (People's United Financial, Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, ~~Parent~~ each of Hxxxxxx Xxxxxxx and the Surviving Company ~~shall, jointly and severally, indemnify, defend~~ shall indemnify and hold ~~harmless each Person who is now~~harmless, ~~or has been at any time prior~~ to the ~~date~~ fullest extent permitted by applicable law, each present and former director, officer or employee of ~~this Agreement~~ MidSouth and its Subsidiaries or ~~who becomes prior to the Effective Time, a director or officer~~ fiduciaries of ~~the Company~~ MidSouth or any of its Subsidiaries ~~or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation~~under MidSouth Benefit Plans (in each case, ~~partnership~~when acting in such capacity) (collectively, ~~limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (~~the “MidSouth Indemnified ~~Persons~~Parties”) against ~~and from all losses~~any costs or expenses (including reasonable attorneys’ fees), ~~claims, damages, costs~~judgments, fines, ~~penalties~~losses, ~~expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of,~~ damages or liabilities incurred in connection with any threatened or actual ~~Proceeding to which such Indemnified Person is~~claim, ~~was~~ action, suit, proceeding or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacityinvestigation, whether ~~pertaining to any act~~ civil, criminal, administrative or ~~omission occurring or existing prior to~~investigative, at whether arising before or after the Effective ~~Time and whether asserted or claimed prior to~~Time, ~~at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or~~ arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require fact that such ~~determination be made by special~~person is or was a director, ~~independent legal counsel selected by the Indemnified Person and approved by Parent~~ officer, employee or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry fiduciary of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company MidSouth or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or ~~exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time.~~ (cii) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions 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 by this Agreement; and Hxxxxxx Xxxxxxx and the Surviving Company shall also advance expenses as incurred by such MidSouth Indemnified Party to the fullest extent permitted by applicable law; provided that the MidSouth Indemnified Party to whom expenses are advanced provides an undertaking (in a reasonable and customary form) to repay such advances if it is ultimately determined that such MidSouth Indemnified Party is not entitled to indemnification. (b) Subject to the following sentence, for a period of six (6) years after the Effective Time, Hxxxxxx Xxxxxxx shall cause the Surviving Company to maintain in effect the current policies of directors’ and officers’ liability insurance maintained by MidSouth (provided that Hxxxxxx Xxxxxxx 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 insured) with respect to claims against the present and former officers and directors of MidSouth 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, however, that ~~Parent~~ Hxxxxxx Xxxxxxx shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~200% of the aggregate annual premium paid ~~by the Company for such insurance~~ as of the date ~~of this Agreement; and provided, further, that if the annual premiums of~~ hereof by MidSouth for such insurance (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then Hxxxxxx Xxxxxxx shall cause to be maintained policies of insurance that, in Hxxxxxx Whitney’s good faith determination, provide the maximum coverage ~~exceed such amount~~available at an annual premium equal to the Premium Cap. In lieu of the foregoing, ~~Parent~~ MidSouth, in consultation with, but only upon the consent of Hxxxxxx Xxxxxxx, may (and at the request of Hxxxxxx Xxxxxxx, MidSouth shall ~~be obligated to~~ use commercially reasonable efforts to) obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six (6)-year “tail” policy under MidSouth’s existing directors’ and officers’ insurance policy 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, ~~for a cost~~ in the aggregate, does not ~~exceeding such amount~~exceed the Premium Cap. (ec) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each MidSouth Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights~~ If Hxxxxxx Xxxxxxx or any of its successors or assigns consolidates with or merges into any other entity and is not the ~~Indemnified Persons under~~ 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, Hxxxxxx Xxxxxxx will cause proper provision to be made so that the successors and assigns of Hxxxxxx Xxxxxxx will expressly assume the obligations set forth in this Section ~~6.4 are~~ 6.7. For the avoidance of doubt, to the extent required by any agreement previously entered into by MidSouth in ~~addition~~ connection with a merger, acquisition or other business combination, the provisions of this Section 6.7 shall apply to ~~any rights such Indemnified Persons may have under the Organizational Documents~~ directors, officers, employees and fiduciaries of ~~the Company~~ predecessor entities previously acquired by MidSouth or any of its Subsidiaries~~, or under any applicable contracts or Law. Parent and~~ . (d) The obligations of the Surviving ~~Company shall pay all expenses~~Company, ~~including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity~~ Hxxxxxx Xxxxxxx and ~~other obligations provided in~~ MidSouth under this Section ~~6.4~~6.7 shall not be terminated or modified in a manner so as to adversely affect any MidSouth Indemnified Party or any other person entitled to the benefit of this Section 6.7 without the prior written consent of the affected MidSouth Indemnified Party.

Appears in 1 contract

Samples: Merger Agreement (Midsouth Bancorp Inc)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, ~~Parent and~~ in the ~~Surviving Company shall~~event of any threatened or actual Proceeding, ~~jointly and severally~~whether civil, ~~indemnify~~criminal or administrative, ~~defend and hold harmless each Person~~ including any such Claim in which any individual who is now, or has been at any time prior to the date of this ~~Agreement~~ Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise~~ Person (~~the~~ each an “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified LiabilitiesParty”), ~~including all Indemnified Liabilities~~ is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining ~~to,~~ to (i) the fact that he or she is or was a director or officer of Company or any of its Subsidiaries prior to the Effective Time or (ii) this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance any of the ~~final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing~~transactions contemplated by this Agreement, ~~in the event any such Proceeding is brought~~ whether asserted or ~~threatened to be brought against any Indemnified Persons (whether~~ arising before or after the Effective Time), ~~(i)~~ the ~~Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person,~~ parties shall cooperate and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use ~~its~~ their reasonable best efforts to ~~assist~~ defend against and respond thereto. All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in ~~the defense~~ favor of any ~~such matter. With respect to any determination~~ Indemnified Party as provided in their respective certificates or articles of ~~whether any Indemnified Person is entitled to indemnification by Parent~~ incorporation or ~~Surviving Company under this Section 6.4~~bylaws (or comparable organizational documents) shall survive the Merger and shall continue in full force and effect in accordance with their terms, ~~such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person~~ and ~~approved by Parent or Surviving Company, as applicable (which approval~~ shall not be ~~unreasonably withheld or delayed)~~amended, and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment repealed or otherwise ~~seek termination with respect to any Proceeding~~ modified for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six ~~(6)~~ years ~~following~~ after the Effective ~~Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries~~ Time in any manner that would adversely affect ~~adversely~~ the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, individuals for acts or omissions ~~existing or~~ occurring at or prior to the Effective Time; provided that nothing in this sentence shall require any amendment to the certificate of incorporation or bylaws (or comparable organizational documents) of the Surviving Corporation. (b) Parent and the Surviving Corporation shall cause the individuals serving as officers and directors of Company immediately prior to the Effective Time to be covered for a period of six (6) years from the Effective Time by the 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 acts or omissions occurring prior to the Effective Time that were committed by such officers and directors in their capacity as such; provided, ~~however,~~ that in no event shall Parent ~~shall not~~ or the Surviving Corporation be required to ~~pay~~ expend annually in the aggregate an ~~annual premium for the D&O Insurance~~ amount in excess of ~~(for any one year) 150~~300% of the annual ~~premium~~ premiums currently paid by the Company (which current amount is set forth in Section 6.11(b) of the Company Disclosure Letter) for such insurance (the “Insurance Amount”); provided, further, that if Parent or the Surviving Corporation is unable to maintain such policy (or such substitute policy) as a result of the ~~date~~ preceding proviso, Parent or the Surviving Corporation shall obtain as much comparable insurance as is available for the Insurance Amount; provided, further, that in lieu of ~~this Agreement~~the foregoing insurance coverage, Parent may direct the Company to purchase a six (6)-year prepaid “tail policy” that provides coverage no less favorable than the coverage described above; and provided, further, that if the annual premiums of for such ~~insurance coverage~~ “tail” policy exceed ~~such amount~~the Insurance Amount, then Parent ~~shall be obligated~~ may direct the Company to obtain a “tail” policy with the ~~greatest~~ maximum coverage ~~available, with respect to facts, acts, events or omissions occurring prior to~~ available for the ~~Effective Time, for a cost not exceeding~~ Insurance Amount applied over the term of such ~~amount. (e)~~ policy. In the event that ~~Parent~~the Company purchases such a “tail” policy, the ~~Surviving Company or any Subsidiary~~ obligations of Parent and the Surviving ~~Company, or any of their respective successors or assigns, (i~~Corporation under this Section 6.11(b) consolidates with or merges into any other Person and shall not be the continuing or surviving company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be ~~made so~~ deemed satisfied, provided that the ~~successors~~ Surviving Corporation shall (and ~~assigns of Parent,~~ Parent shall cause the Surviving ~~Company or~~ Corporation to) maintain such ~~Subsidiary of the Surviving Company, as the case may be, shall assume~~ “tail” policy in full force and effect and continue to honor the obligations ~~set forth in~~ thereunder pursuant to this Section ~~6.4.~~ 6.11(b). (c) The provisions of this Section ~~6.4~~ 6.11 are intended to be for the benefit ~~of,~~ of and shall be enforceable by, ~~the parties~~ each Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ respective heirs and representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4.

Appears in 1 contract

Samples: Merger Agreement (Sciquest Inc)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing as~~ In the event of ~~the date of this Agreement to indemnification~~any threatened or actual claim, ~~advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors~~action, ~~officers~~ suit, proceeding or ~~employees of the Company~~ investigation, whether civil, criminal or ~~any of its Subsidiaries as provided in the Organizational Documents of the Company or~~ administrative (a “Claim”), including any such ~~Subsidiary,~~ Claim in which any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person individual who is now, or has been at any time ~~prior to~~ before the date of this ~~Agreement~~ Agreement, or who becomes ~~prior to~~ before the Effective Time, a ~~director~~ director, officer or ~~officer~~ employee of the Company or any of its Subsidiaries or who is or was serving at the request of the Company or any of its Subsidiaries as a ~~director~~ director, officer or ~~officer~~ employee of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise~~ person (the “Indemnified ~~Persons~~Parties”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement ofis, or ~~incurred in connection with any~~ is threatened ~~or actual Proceeding~~ to ~~which such Indemnified Person is~~be, ~~was or becomes~~ made a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining toto (i) the fact that he is or was a director, officer or employee of the Company or any of its Subsidiaries before the Effective Time or (ii) this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance any of the ~~final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing~~transactions contemplated by this Agreement, ~~in the event any such Proceeding is brought~~ whether asserted or ~~threatened to be brought against any Indemnified Persons (whether~~ arising before or after the Effective Time), ~~(i)~~ the ~~Indemnified Persons may retain~~ parties, prior to the ~~Company’s regularly engaged legal counsel or other counsel satisfactory~~ Effective Time, shall cooperate and use their best efforts to ~~such Indemnified Person~~defend against and respond thereto, and ~~Parent and~~ Buyer, following the ~~Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received~~Effective Time, ~~and (ii) the Surviving Company~~ shall use its ~~reasonable~~ best efforts to ~~assist~~ defend and respond thereto. All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or before the Effective Time now existing in ~~the defense~~ favor of any ~~such matter. With respect to~~ Indemnified Party as provided in their respective certificates or articles of incorporation or bylaws (or comparable organizational documents), and any ~~determination~~ existing indemnification agreements set forth on Section 6.7 of ~~whether any Indemnified Person is entitled to indemnification by Parent or Surviving~~ the Company ~~under this Section 6.4~~Disclosure Schedule, ~~such Indemnified Person~~ shall ~~have~~ survive the ~~right to require that such determination be made by special~~Merger and shall continue in full force and effect in accordance with their terms, ~~independent legal counsel selected by the Indemnified Person~~ and ~~approved by Parent or Surviving Company, as applicable (which approval~~ shall not be ~~unreasonably withheld or delayed)~~amended, and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment repealed or otherwise ~~seek termination with respect to~~ modified after the Effective Time in any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out manner that would adversely affect the rights thereunder of such ~~Proceeding and does not include~~ individuals for acts or omissions occurring at or before the ~~imposition~~ Effective Time or taken at the request of ~~equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person~~Buyer. (b) ~~For a period of six (6) years following~~ From and after the Effective Time, ~~Parent and~~ the Surviving ~~Company shall~~ Corporation shall, to the fullest extent not ~~amend~~prohibited by applicable law, ~~repeal~~ indemnify, defend and hold harmless, and provide advancement of expenses to, each Indemnified Party against all losses, claims, damages, costs, expenses (including without limitation attorneys’ fees), liabilities or ~~otherwise modify~~ judgments or amounts that are paid in settlement of or in connection with any ~~provision~~ Claim based in ~~the Organizational Documents~~ whole or in part on or arising in whole or in part out of the ~~Surviving Company~~ fact that such person is or ~~its Subsidiaries in any manner that would affect adversely the rights thereunder~~ was a director, officer or ~~under the Organizational Documents~~ employee of the ~~Surviving~~ Company or any Subsidiary of ~~its Subsidiaries of any Person~~ the Company, whether pertaining to ~~indemnification~~a matter existing or occurring, ~~exculpation and expense advancement except to~~ or an act or omission occurring, at or before the ~~extent required by applicable Law. Parent shall~~Effective Time, and whether asserted or claimed before, or at or after, 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) or taken at the request of Buyer. (c) Buyer shall cause the ~~Surviving Company~~ individuals serving as officers and ~~its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between~~ directors of the Company or any of its Subsidiaries ~~and any of its directors, officers or employees existing~~ immediately ~~prior~~ before the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts Time to continue to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with covered for a ~~claims~~ period of at least six years from the Effective Time ~~from an insurance carrier with~~ by the ~~same or better credit rating as the Company’s current insurance carrier with respect to~~ directors’ and officers’ liability ~~insurance, fiduciary liability~~ insurance ~~and employment practices liability insurance in an amount and scope at least as favorable as~~ policy maintained by the ~~Company’s existing policies with respect to matters, acts or omissions existing or occurring at or~~ Company immediately prior to the Effective ~~Time~~Time (provided that Buyer 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 acts or omissions occurring at or before the Effective Time that were committed by such officers and directors in their capacity as such; ~~provided, however,~~ provided that ~~Parent~~ in no event shall ~~not~~ Buyer be required to ~~pay~~ expend annually in the aggregate an ~~annual premium for the D&O Insurance~~ amount in excess of ~~(for any one year) 150~~300% of the annual ~~premium~~ premiums currently paid by the Company (which current amount is set forth on Section 6.7 of the Company Disclosure Schedule) for such insurance (the “Insurance Amount”), and provided further that if Buyer is unable to maintain such policy (or such substitute policy) as a result of the ~~date of this Agreement; and provided~~preceding proviso, ~~further, that if~~ Buyer shall obtain as much comparable insurance as is available for the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amountInsurance Amount. (ed) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable at law and/or in equity (by injunction, specific performance or otherwise) by, ~~the parties~~ each Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4.

Appears in 1 contract

Samples: Merger Agreement (Alabama National Bancorporation)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing~~ From and after the Effective Time, Purchaser and the Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law, the Company Articles or Company Bylaws as of in effect on the date of this Agreement ~~to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers~~ or ~~employees of~~ any agreements providing for indemnification by the Company or any of its ~~Subsidiaries as provided in the Organizational Documents~~ Subsidiaries, each present and former director, officer or employee of the Company and its Subsidiaries (in each case, when acting in such capacity) (collectively, the “Company Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection with any ~~such Subsidiary~~threatened or actual claim, ~~any employment agreement~~ action, suit, proceeding or ~~indemnification agreement in effect on the date hereof~~ investigation, whether civil, criminal, administrative or ~~otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms~~investigative, ~~and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and~~ whether arising before or after the Effective Time, ~~Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now~~arising in whole or in part out of, or ~~has been at any time prior to~~ pertaining to, the ~~date of this Agreement~~ fact that such person is or ~~who becomes prior to the Effective Time~~was a director, ~~a director~~ officer or ~~officer~~ employee of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against~~ person and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time, including matters, acts or omissions occurring in connection with the consideration and approval of this Agreement and the transactions contemplated by this Agreement; and Purchaser and the Surviving Corporation shall also advance expenses as incurred by such Company Indemnified Party to the fullest extent permitted by applicable law, the Company Articles or Company Bylaws as in effect on the date of this Agreement or any agreements providing for indemnification by the Company or any of its Subsidiaries, provided that the Company Indemnified Party to whom expenses are advanced provides an undertaking, in a reasonable and customary form, to repay such advances if it is ultimately determined that such Company Indemnified Party is not entitled to indemnification. (b) For a period of six (6) years after the Effective Time, Purchaser and the Surviving Corporation shall cause to be maintained, at no expense to the beneficiaries, in effect the current policies of directors’ and officers’ liability insurance maintained by the Company (provided, that Purchaser and 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 insured) with respect to claims against the present and former officers and directors of the Company 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, ~~however,~~ that ~~Parent~~ Purchaser and the Surviving Corporation shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~300% of the current annual premium paid as of the date hereof by the Company for such insurance as (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then Purchaser and the Surviving Corporation shall cause to be maintained policies of insurance which, in Purchaser’s and 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 ~~date of this Agreement; and provided~~foregoing, ~~further, that if~~ the ~~annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to~~ Company may obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year “tail” policy under the Company’s existing directors and officers insurance policy 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, ~~for~~ on an annual basis, does not exceed the Premium Cap. If the Company purchases such a ~~cost not exceeding~~ “tail policy,” Purchaser and the Surviving Corporation shall maintain such ~~amount~~“tail policy” in full force and effect and continue to honor its obligations thereunder. (ec) In The obligations of the ~~event that Parent~~Purchaser, the Surviving Corporation and the Company ~~or any Subsidiary of the Surviving Company, or any of their respective successors or assigns, (i~~under this Section 6.7(c) ~~consolidates with or merges into any other Person and~~ shall not be terminated or modified after the ~~continuing~~ Effective Time in a manner so as to adversely affect any Company Indemnified Party or ~~surviving company~~ any other person entitled to the benefit of this Section 6.7(c) without the prior written consent of the affected Company Indemnified Party or ~~entity~~ affected person. The rights of ~~such consolidation or merger or (ii) transfers all or substantially all of its properties and assets~~ each Company Indemnified Party under this Section 6.7 shall be in addition to any ~~Person~~rights such person may have under the CBCA, ~~then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company~~ any other applicable law or ~~such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4.~~ agreement. (d) The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of~~ If Purchaser, the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ Surviving Corporation or any of their respective 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 ~~Subsidiaries~~assets or deposits to any other entity or engage in any similar transaction, then in each case, Purchaser or ~~under any applicable contracts or Law. Parent and~~ the Surviving ~~Company shall pay all expenses, including attorneys’ fees,~~ Corporation will cause proper provision to be made so that ~~may be incurred by any Indemnified Person in enforcing~~ the ~~indemnity~~ successors and ~~other~~ assigns of Purchaser or the Surviving Corporation will expressly assume the obligations ~~provided~~ set forth in this Section ~~6.4~~6.7.

Appears in 1 contract

Samples: Merger Agreement (Bok Financial Corp Et Al)

Appears in 1 contract

Samples: Merger Agreement

Indemnification; Directors’ and Officers’ Insurance. (ai) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, Parent shall, and shall cause the Surviving ~~Company shall, jointly and severally,~~ Corporation to indemnify, defend and hold harmless ~~each Person~~ any person who is now, or has been at any time prior to the date ~~of this Agreement~~ hereof, or who becomes prior to the Effective Time, a director or officer (an "Indemnified ----------- Person") of the Company or any of its ~~Subsidiaries~~ subsidiaries against all losses, claims, ------ damages, liabilities, costs and expenses (including reasonable fees and expenses of legal counsel selected by the Indemnified Person with the consent of Parent, which consent will not be unreasonably withheld), judgments, fines and amounts paid in settlement in connection with any actual or threatened action, suit, claim, proceeding or investigation (each a "Claim") to the extent ----- that any such Claim is based on, or arises out of: (x) the fact that such Indemnified Person is or was a director or officer of the Company or any of its subsidiaries or is or was serving at the request of the Company or any of its ~~Subsidiaries~~ subsidiaries as a director or officer of another corporation, partnership, ~~limited liability company,~~ joint venture~~, Employee Benefit Plan~~, trust or other ~~enterprise~~ enterprise; or (~~the “Indemnified Persons”~~y) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company this Agreement or any of ~~its Subsidiaries~~ the transactions contemplated hereby, in each case to the extent that any such Claim pertains to any matter or is fact arising, existing or ~~was serving~~ occurring prior to or at the ~~request~~ Effective Time, regardless of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by whether such ~~Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether~~ Claim is asserted or claimed prior to, at or after the Effective ~~Time~~ Time, to the full extent permitted under the DGCL, the Company Certificate or the Company Bylaws or any indemnification agreement in effect prior to the date hereof and listed in Section 5.2(c) to the Company Disclosure Schedule (~~“Indemnified Liabilities”~~complete and correct copies of which have been previously provided to Parent), including ~~all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case,~~ provisions relating to ~~the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay~~ advancement of expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such ~~matter~~Claim. ~~With respect to any determination~~ Without limiting the generality of ~~whether~~ the preceding sentence, in the event any Indemnified Person ~~is entitled~~ becomes involved in any Claim, after the Effective Time, Parent shall periodically advance to ~~indemnification by Parent or Surviving Company under this Section 6.4,~~ such Indemnified Person ~~shall have~~ its legal and other expenses (including the ~~right~~ cost of any investigation and preparation incurred in connection therewith), subject to ~~require~~ the provisions of paragraph (ii) of this Section 5.2(c), and subject to the providing by such Indemnified Person of an undertaking to reimburse all amounts so advanced in the event of a final non-appealable determination by a court of competent jurisdiction that such ~~determination~~ Indemnified Person is not entitled thereto. (ii) The Indemnified Person shall control the defense of any Claim with counsel selected by the Indemnified Person, which counsel shall be ~~made by special~~reasonably acceptable to Parent, provided that Parent shall be permitted to participate in the defense of such Claim at its own expense. Parent shall not be obligated to pay the fees and expenses of more than one counsel for all Indemnified Persons in any single Claim except to the extent that, in the opinion of independent legal counsel selected by the Indemnified ~~Person and approved by~~ Person, which counsel shall be reasonably acceptable to Parent, representation of two or more of such Indemnified Persons would present a conflict of interest under applicable standards of conduct in the legal profession. Parent ~~or Surviving Company, as applicable (which approval~~ shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably ~~withheld or delayed)~~be withheld. (iii) Parent and the Company agree that all rights to indemnification of liabilities, and ~~who has not otherwise performed material services for Parent~~all limitations with respect thereto, ~~Surviving Company~~existing in favor of any Indemnified Person, as provided in the Company Certificate or the Company Bylaws and any indemnification agreement in effect at the date hereof and listed in Section 5.2(c) to the Company Disclosure Schedule, 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, any determination required to be made with respect to whether an Indemnified Person's conduct complies with the standards set forth under the DGCL, the Company Certificate or the Company Bylaws or any such agreement, as the case may be, shall be made by independent legal counsel selected by such Indemnified Person ~~within the last three years. Notwithstanding anything~~ and reasonably acceptable to ~~the contrary contained~~ Parent; and provided further that nothing in this ~~Agreement, Parent~~ Section 5.2(c) shall ~~not (and Parent shall cause the Surviving Company not to) settle~~ impair any rights or ~~compromise or consent to the entry~~ -------- ------- obligations of any ~~judgment~~ current or ~~otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent~~ former director or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents officer of the Company or ~~any~~ its subsidiaries, including pursuant to the respective certificates of ~~its Subsidiaries~~incorporation or bylaws of Parent or the Company, ~~any employment agreement~~ or ~~indemnification agreement in effect on~~ their respective subsidiaries, under the ~~date hereof~~ DGCL or otherwise~~, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder~~. (div) Parent shall maintain the Company's existing directors' and ~~the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail”~~ officers' liability insurance ~~policies~~ policy (~~collectively, the “~~"D&O Insurance”") ~~with~~ for a ~~claims~~ ------------- period of ~~at least~~ not less than six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to after the Effective Time; provided, however, ----------------- that Parent may substitute therefor policies of substantially similar coverage and amounts (with carriers comparable to the Company's existing carriers) containing terms no less advantageous to such former directors or officers; provided further that if the existing D&O Insurance expires or is canceled -------- ------- during such period, Parent shall use its reasonable efforts to obtain substantially similar D&O Insurance; provided further that Parent shall not be -------- ------- required to pay an ~~annual~~ aggregate premium for ~~the~~ D&O Insurance in excess of ($1.75 million, but in such case shall purchase as much coverage as possible for any one year) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amount. (ev) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 5.2(c) are intended to be for the benefit of, and shall be enforceable by, ~~the parties and~~ each ~~Person entitled to indemnification~~Indemnified Person, ~~exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and his or her personal representatives~~. The rights of~~ . (vi) From and after the ~~Indemnified Persons under this Section 6.4 are in addition~~ Effective Time, Parent shall (A) provide to ~~any rights such Indemnified Persons may have under~~ the ~~Organizational Documents~~ directors of the Company ~~or any~~ who become directors of ~~its Subsidiaries~~Parent directors' and officers' liability insurance on the same basis and to the same extent as that, ~~or under any applicable contracts or Law.~~ if any, provided to other directors of Parent, and (B) enter into indemnification agreements with the directors of the Company who become directors of Parent ~~and~~ on the ~~Surviving Company shall pay all expenses~~same terms, ~~including attorneys’ fees~~if any, ~~that may be incurred by any Indemnified Person in enforcing the indemnity and~~ entered into with other ~~obligations provided in this Section 6.4~~directors of Parent generally.

Appears in 1 contract

Samples: Merger Agreement (Intersil Corp/De)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, ~~Parent and~~ the Surviving ~~Company shall, jointly and severally, indemnify, defend~~ Entity shall indemnify and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries and shall advance expenses as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactionsincurred, in each case, to the fullest extent permitted ~~under~~ by applicable ~~Law (and Parent~~ law, the IBTX Certificate, the IBTX Bylaws and the ~~Surviving Company shall~~governing or organizational documents of any IBTX Subsidiary, ~~jointly~~ each present and ~~severally~~former director, ~~pay~~ officer or employee of IBTX and its Subsidiaries (in each case, when acting in such capacity) (collectively, the “IBTX Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection ~~therewith in advance of the final disposition of~~ with any ~~such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing~~threatened or actual claim, ~~in the event any such Proceeding is brought~~ action, suit, proceeding or ~~threatened to be brought against any Indemnified Persons (~~investigation, whether civil, criminal, administrative or investigative, whether arising before or after the Effective Time), ~~(i)~~ arising out of, or pertaining to, the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require fact that such ~~determination be made by special~~person is or was a director, ~~independent legal counsel selected by the Indemnified Person and approved by Parent~~ officer or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry employee of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company IBTX or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect pertaining to matters, acts or omissions 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 transactions contemplated by this Agreement; provided, that in the case of advancement of expenses, any IBTX Indemnified Party to whom expenses are advanced provides an irrevocable undertaking to repay such advances if it is ultimately determined that such IBTX Indemnified Party is not entitled to indemnification. The Surviving Entity shall reasonably cooperate with the IBTX Indemnified Parties, and the IBTX 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 and other rights provided in this clause (a), all rights to indemnification and all limitations on liability existing in favor of the IBTX 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 IBTX 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. (b) For a period of six years after the Effective Time, the Surviving Entity shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance maintained by IBTX (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 insured) with respect to claims against the present and former officers and directors of IBTX 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 ~~Parent~~ the Surviving Entity shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~300% of the current annual premium paid ~~by the Company for such insurance~~ as of the date ~~of this Agreement; and provided, further, that if the annual premiums of~~ hereof by IBTX 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 ~~exceed such amount~~available at an annual premium equal to the Premium Cap. In lieu of the foregoing, ~~Parent~~ SouthState or IBTX, in consultation with, but only upon the consent of, SouthState, may (and at the request of SouthState, IBTX shall ~~be obligated to~~ use its reasonable best efforts to) obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year “tail” policy under IBTX’s existing directors’ and officers’ insurance policy 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, ~~for a cost~~ in the aggregate, does not ~~exceeding such amount~~exceed the Premium Cap. (ec) ~~In the event that Parent, the Surviving Company or any Subsidiary~~ The obligations of the Surviving ~~Company~~Entity, SouthState or ~~any of their respective successors or assigns, (i) consolidates with or merges into any other Person and~~ IBTX under this Section 6.8 shall not be terminated or modified after the ~~continuing~~ Effective Time in a manner so as to adversely affect any IBTX Indemnified Party or ~~surviving company or entity~~ any other person entitled to the benefit of ~~such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that~~ this Section 6.8 without the ~~successors and assigns of Parent, the Surviving Company or such Subsidiary~~ prior written consent of the ~~Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4.~~ affected IBTX Indemnified Party or affected person. (d) The provisions of this Section ~~6.4~~ 6.8 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each IBTX Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of~~ If the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ Surviving Entity or any of its ~~Subsidiaries~~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 ~~under~~ (ii) transfers all or substantially all of its assets or deposits to any ~~applicable contracts~~ other person or ~~Law. Parent and~~ engages in any similar transaction, then in each such case, the Surviving ~~Company shall pay all expenses, including attorneys’ fees,~~ Entity will cause proper provision to be made so that ~~may be incurred by any Indemnified Person in enforcing~~ the ~~indemnity~~ successors and ~~other~~ assigns of the Surviving Entity will expressly assume the obligations ~~provided~~ set forth in this Section ~~6.4~~6.8.

Appears in 1 contract

Samples: Merger Agreement (Independent Bank Group, Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, Parent ~~and the Surviving Company~~ shall, ~~jointly and severally~~to the fullest extent permitted by Applicable Legal Requirements, indemnify, defend and hold ~~harmless~~ harmless, and provide advancement of expenses to, each ~~Person~~ person who is now, or has been at any time prior to the date ~~of this Agreement~~ hereof or who becomes prior to the Effective Time, a an officer, director or ~~officer~~ employee of ~~the~~ Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified ~~Persons~~Parties”) against ~~and from~~ all losses, claims, damages, costs, ~~fines~~expenses, ~~penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities,~~ liabilities or judgments ~~and~~ or amounts that are paid in settlement ~~of,~~ of or ~~incurred~~ in connection with any ~~threatened~~ claim, action, suit, proceeding or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities investigation based in whole or in part ~~on,~~ on or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require fact that such ~~determination be made by special~~person is or was a director, ~~independent legal counsel selected by the Indemnified Person and approved by Parent~~ officer or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry employee of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any Subsidiary of ~~its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall~~Company, and ~~shall cause the Surviving Company and its Subsidiaries to~~pertaining to any matter existing or occurring, ~~fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company~~ or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions ~~existing or~~ occurring at or prior to the Effective Time, whether asserted or claimed prior to, or at or after, 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) (“Indemnified Liabilities”). Without limiting the foregoing, Parent agrees to assume all obligations that may arise under the indemnity agreements listed on Section 4.2(i) of the Disclosure Schedule to the indemnified persons under such agreements. (b) Prior to the Effective Time, Company may purchase a “tail” policy or “extended discovery period” under Company’s existing directors and officers liability insurance policy providing coverage for a period of up to six (6) years after the Effective Time, or with the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed), comparable coverage for a substantially comparable insurer; provided, however, that ~~Parent~~ the total cost of any extended insurance coverage purchased by Company shall not ~~be required to pay an annual premium for the D&O Insurance in excess of (for any one year) 150~~exceed 250% of the current annual premium paid by ~~the~~ Company ~~for such~~ under its existing directors and officers liability insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amountpolicy. (ec) In Parent shall indemnify an Indemnified Party for all expenses, including reasonable fees and expenses of counsel, that an Indemnified Party may incur in successfully enforcing the ~~event that Parent, the Surviving Company or any Subsidiary of the Surviving Company,~~ indemnity and other obligations provided for in this Section 5.8. (d) If Parent or any of ~~their respective~~ its successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving ~~company~~ 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, proper ~~provisions~~ provision shall be made so that the successors and assigns of ~~Parent,~~ the Surviving ~~Company or such Subsidiary of the Surviving Company~~Bank, as the case may be, shall assume the obligations set forth in this Section ~~6.4.~~ 5.8. (e) The provisions of this Section ~~6.4~~ 5.8 (i) are intended to be for the benefit of, and shall be enforceable by, ~~the parties and~~ each ~~Person entitled to indemnification~~Indemnified Party, ~~exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and ~~representatives. The rights of the Indemnified Persons under this Section 6.4~~ representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any ~~rights~~ such ~~Indemnified Persons~~ Person may have ~~under the Organizational Documents of the Company~~ by contract or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4otherwise.

Appears in 1 contract

Samples: Merger Agreement (Sierra Bancorp)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the First Effective Time, ~~Parent and~~ the Surviving ~~Company shall, jointly and severally, indemnify, defend~~ Entity shall indemnify and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries and shall advance expenses as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactionsincurred, in each case, to the fullest extent permitted ~~under~~ by applicable ~~Law (and Parent~~ law, the Company Articles, the Company Bylaws and the ~~Surviving~~ governing or organizational documents of any Company ~~shall~~Subsidiary, ~~jointly~~ each present and ~~severally~~former director, ~~pay~~ officer or employee of the Company and its Subsidiaries (in each case, when acting in such capacity) (collectively, the “Company Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection ~~therewith in advance of the final disposition of~~ with any ~~such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing~~threatened or actual claim, ~~in the event any such Proceeding is brought~~ action, suit, proceeding or ~~threatened to be brought against any Indemnified Persons (~~investigation, whether civil, criminal, administrative or investigative, whether arising before or after the First Effective Time), ~~(i)~~ arising out of, or pertaining to, 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, acts or omissions existing or occurring at or prior to the First Effective Time, including matters, acts or omissions 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, any Company Indemnified ~~Persons may retain~~ Party to whom expenses are advanced provides a customary undertaking to repay such advances if it is ultimately determined that such Company Indemnified Party is not entitled to indemnification. The Surviving Entity shall reasonably cooperate with the ~~Company’s regularly engaged legal counsel or other counsel satisfactory to such~~ Company Indemnified ~~Person~~Parties, and ~~Parent and~~ the Company Indemnified Parties shall reasonably cooperate with the Surviving ~~Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received~~Entity, ~~and (ii) the Surviving Company shall use its reasonable best efforts to assist~~ in the defense of any such ~~matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent~~ claim, action, suit, proceeding or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Personinvestigation. (b) For a period of six (6) years ~~following~~ after the First Effective Time, ~~Parent and~~ the Surviving Entity shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance maintained by the Company ~~shall not amend~~(provided, ~~repeal or otherwise modify any provision in the Organizational Documents of~~ that the Surviving ~~Company or its Subsidiaries in any manner~~ Entity may substitute therefor policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except are no less advantageous to the ~~extent required by applicable Law. Parent shall,~~ insured) with respect to claims against the present and ~~shall cause the Surviving Company~~ former officers and ~~its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between~~ directors of the Company or any of its Subsidiaries ~~and any of its directors, officers~~ arising from facts or ~~employees existing immediately prior~~ events which occurred at or before the First Effective ~~Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses~~ Time (including ~~reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to~~ the ~~enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents~~ approval of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Timetransactions contemplated by this Agreement); provided, however, that ~~Parent~~ the Surviving Entity shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of three hundred percent (~~for any one year~~300%) ~~150%~~ 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 the Surviving Entity shall cause to be maintained policies of insurance which, in the Surviving Entity’s good faith determination, provide the maximum coverage available at an annual premium equal to the Premium Cap. In lieu of the foregoing, Purchaser or the Company, in consultation with Purchaser, may (and at the request of Purchaser, the Company shall use its reasonable best efforts to) obtain, at or prior to the First Effective Time, a six (6)-year “tail” policy under the Company’s existing directors’ and officers’ insurance policy 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 three hundred percent (300%) of the current annual premium paid as of the date ~~of this Agreement;~~ hereof by the Company for its existing directors’ and ~~provided, further, that if the annual premiums of such~~ officers’ insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amountpolicy. (ec) ~~In the event that Parent, the Surviving Company or any Subsidiary~~ The obligations of the Surviving ~~Company~~Entity, Purchaser or ~~any of their respective successors or assigns, (i) consolidates with or merges into any other Person and~~ the Company under this Section 6.8 shall not be terminated or modified after the ~~continuing~~ First Effective Time in a manner so as to adversely affect any Company Indemnified Party or ~~surviving company or entity~~ any other person entitled to the benefit of ~~such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that~~ this Section 6.8 without the ~~successors and assigns of Parent, the Surviving Company or such Subsidiary~~ prior written consent of the ~~Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4.~~ affected Company Indemnified Party or affected person. (d) The provisions of this Section ~~6.4~~ 6.8 shall survive the First Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of~~ If the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ Surviving Entity or any of its ~~Subsidiaries~~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 ~~under~~ (ii) transfers all or substantially all of its assets or deposits to any ~~applicable contracts~~ other person or ~~Law. Parent and~~ engages in any similar transaction, then in each such case, the Surviving ~~Company shall pay all expenses, including attorneys’ fees,~~ Entity will cause proper provision to be made so that ~~may be incurred by any Indemnified Person in enforcing~~ the ~~indemnity~~ successors and ~~other~~ assigns of the Surviving Entity will expressly assume the obligations ~~provided~~ set forth in this Section ~~6.4~~6.8.

Appears in 1 contract

Samples: Agreement and Plan of Merger (TriState Capital Holdings, Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) From and after the Effective Time, each of Parent ~~agrees that all rights existing as~~ and the Surviving Corporation shall indemnify and hold harmless, each present and former director, officer or employee of the ~~date of this Agreement to indemnification, advancement of expenses~~ Company and ~~exculpation from Indemnified Liabilities in favor of current and/or former directors, officers~~ its Subsidiaries or ~~employees~~ fiduciaries of the Company or any of its Subsidiaries ~~as provided in the Organizational Documents of~~ under the Company ~~or any~~ Benefit Plans (in each case, when acting in such ~~Subsidiary~~capacity) (collectively, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Company Indemnified ~~Persons~~Parties”) against ~~and from all losses~~any costs or expenses (including reasonable attorneys’ fees), ~~claims, damages, costs~~judgments, fines, ~~penalties~~losses, ~~expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of,~~ damages or liabilities incurred in connection with any threatened or actual ~~Proceeding to which such Indemnified Person is~~claim, ~~was~~ action, suit, proceeding or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacityinvestigation, whether ~~pertaining to any act~~ civil, criminal, administrative or ~~omission occurring or existing prior to~~investigative, at whether arising before or after the Effective ~~Time and whether asserted or claimed prior to~~Time, ~~at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or~~ arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require fact that such ~~determination be made by special~~person is or was a director, ~~independent legal counsel selected by the Indemnified Person and approved by Parent~~ officer or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry employee of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries ~~and any of its directors, officers~~ or ~~employees existing immediately prior the Effective Time.~~ (cii) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time, including matters, acts or omissions occurring in connection with the consideration and approval of this Agreement and the consummation of the transactions contemplated by this Agreement, in each case, to the same extent as such persons are indemnified 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, and Parent and the Surviving Corporation shall also advance expenses as incurred by such Company Indemnified Party to the same extent as 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 Company Indemnified Party to whom expenses are advanced provides an undertaking (in a reasonable and customary form) to repay such advances if it is ultimately determined that such Company Indemnified Party is not entitled to indemnification. (b) For a period of six (6) 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 the Company or its Subsidiaries or fiduciaries of the Company or any of its Subsidiaries under the Company Benefit Plans (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 insured) with respect to claims arising from facts or events which occurred at or before the Effective Time (including the transactions contemplated by this Agreement); provided, however, that ~~Parent~~ the Surviving Corporation shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~300% of the current annual premium paid as of the date hereof by the Company for such insurance as (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 ~~date~~ foregoing, the Company, in consultation with Parent, may (and at the request of ~~this Agreement; and provided~~Parent, ~~further, that if~~ the ~~annual premiums of such insurance coverage exceed such amount, Parent~~ Company shall ~~be obligated to~~ use its reasonable best efforts to) obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year “tail” policy under the Company’s existing directors and officers insurance policy 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, ~~for~~ in the aggregate, does not exceed, on an annual basis, the Premium Cap. If a ~~cost~~ “tail policy” is purchased as provided above, the Surviving Corporation shall maintain in full force and effect and not ~~exceeding~~ cancel such ~~amount~~policy. (ec) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of~~ If the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ Surviving Corporation or any of its ~~Subsidiaries~~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 ~~under~~ substantially all of its assets or deposits to any ~~applicable contracts~~ other entity or ~~Law.~~ 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. (d) The obligations of the Surviving Corporation, Parent and the ~~Surviving~~ Company ~~shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in~~ under this Section ~~6.4~~6.7 shall not be terminated or modified in a manner so as to adversely affect any Company Indemnified Party or any other person entitled to the benefit of this Section 6.7 without the prior written consent of the affected Company Indemnified Party.

Appears in 1 contract

Samples: Merger Agreement (Oceanfirst Financial Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) For a period of no less than six years after the First Effective Time, the Surviving Company shall (and Parent ~~agrees that all rights existing as of~~ shall cause the ~~date of this Agreement to indemnification~~Surviving Company to) indemnify and hold harmless, and provide advancement of expenses to, all current or former directors and ~~exculpation from Indemnified Liabilities in favor of current and/or former directors,~~ officers ~~or employees~~ of the Company or any of ~~its~~ the Company Subsidiaries, any Person who becomes a director or officer of the Company or any of the Company Subsidiaries prior to the First Effective Time and any current or former director of officer of the 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 (together with their respective heirs and representatives, the “Indemnified Parties”) to the fullest extent permitted by applicable Legal Requirements in respect of 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, by reason of the fact of such Persons serving as an officer or director of the Company or any of the 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 the Surviving Company shall (and Parent shall cause the Surviving Company to) also advance expenses to the Indemnified Parties as incurred to the fullest extent permitted by applicable Legal Requirements; provided that the Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by a final and nonappealable judicial determination that such Indemnified Party is not entitled to indemnification under this Section 4.13(a) or otherwise. 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 ~~Subsidiary, any employment agreement or indemnification agreement in effect on~~ Person shall survive the ~~date hereof or otherwise (which~~ Mergers and shall ~~be assumed by Parent and the Surviving Company) will~~ continue in full force and ~~effect in accordance with their terms~~effect. For six years after the First Effective Time, ~~and Parent will cause~~ the Surviving Company shall cause to ~~perform its respective obligations thereunder. Without limiting~~ be maintained in effect the ~~foregoing, from~~ provisions in: (i) the Organizational Documents of the Company and ~~after~~ each of the ~~Effective Time, Parent~~ Company Subsidiaries; and ~~the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now, or has been at~~ (ii) any ~~time prior to the date of this Agreement or who becomes prior to the Effective Time, a director or officer~~ other agreements of the Company or any of ~~its Subsidiaries or is or was serving at the request of~~ the Company ~~or any of its~~ Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any ~~threatened or actual Proceeding to which such~~ Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the TransactionsParty, in each case, to 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 ~~fullest extent permitted under applicable Law (~~date of this Agreement, and ~~Parent~~ no such provision shall be amended, modified or repealed in any manner that would materially and adversely affect the ~~Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition~~ rights or protections thereunder of any such ~~Proceeding~~ Indemnified Party in respect of acts or omissions occurring or alleged to ~~each Indemnified Person~~ have occurred at or prior to the ~~fullest extent permitted under applicable Law). Without limiting~~ First Effective Time without the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to consent of such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified PersonParty. (b) For a period of no less than six ~~(6)~~ years following the First Effective Time, Parent and the Surviving Company shall ~~not amend~~cause to be maintained in effect the existing policy of the Company’s directors’ and officers’ liability insurance (or a comparable replacement policy) (the “D&O Policy”) covering claims arising from facts or events that occurred at or prior to the First Effective Time (including for 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 directors and officers, ~~repeal~~ 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 ~~otherwise modify any provision in the Organizational Documents of~~ the Surviving Company ~~or its Subsidiaries~~ be required to expend in any ~~manner that would affect adversely the rights thereunder or under the Organizational Documents~~ one year an amount in excess of 300% of the ~~Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required~~ current annual premium paid by ~~applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between~~ the Company ~~or any~~ (which annual premium is set forth in Section 4.13(b) of ~~its Subsidiaries~~ the Company Disclosure Schedule) for such insurance (such 300% amount, the “Maximum Annual Premium”); and ~~any~~ provided further, however, that if the annual premium of ~~its directors, officers or employees existing immediately prior~~ such insurance coverage exceeds the ~~Effective Time. (c) To the extent permitted by applicable Law~~Maximum Annual Premium, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time; provided, however, that Parent shall not be required to pay an annual premium for the D&O Insurance in excess of (for any one year) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest comparable coverage ~~available, with respect to facts, acts, events or omissions occurring prior to the Effective Time,~~ available for a cost not exceeding ~~such amount. (e) In~~ 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 4.13(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~~Parent or the Company shall purchase such a “tail” policy, Parent and the Surviving Company ~~or any Subsidiary of the Surviving Company, or any of~~ shall maintain such “tail” policy in full force and effect and continue to honor their respective successors or assigns, (i) consolidates with or merges into any other Person and shall not be the continuing or surviving company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, thenobligations thereunder, in ~~each such case, proper provisions shall be made so that the successors~~ lieu of all other applicable obligations of Parent and ~~assigns of Parent,~~ the Surviving Company or under the first sentence of this Section 4.13(b) for so long as such ~~Subsidiary of the Surviving Company, as the case may be,~~ “tail” policy shall ~~assume the obligations set forth~~ be maintained in full force and effect. Notwithstanding anything in this Section ~~6.4. The~~ 4.13 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 4.13, the provisions of this Section ~~6.4~~ 4.13 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 4.13 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 4.13(b) and 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 4.13(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 4.13(b) (and, after the death of any of the foregoing Persons, such Person’s heirs and representatives) are intended to be ~~for the benefit of, and shall be enforceable by, the parties and each Person entitled to indemnification, exculpation, insurance coverage or expense advancement or any other right pursuant to~~ third party beneficiaries of this Section ~~6.4~~4.13, ~~and his, her or its heirs and representatives~~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 4.13(b) (and their heirs and representatives)) under this Section ~~6.4 are~~ 4.13 shall be in addition to to, and not in substitution for, any other rights that such ~~Indemnified~~ Persons may have under the Organizational Documents of the Company or any of ~~its~~ the Company Subsidiaries, any and all indemnification agreements of or entered into by the Company or any of the Company Subsidiaries, or ~~under~~ applicable Legal Requirements (whether at law or in equity). In the event of any ~~applicable contracts~~ breach by the Surviving Company or ~~Law.~~ Parent ~~and~~ of this Section 4.13, Parent or the Surviving Company shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by ~~any~~ the Indemnified ~~Person~~ Parties in enforcing the indemnity and other obligations provided in this Section ~~6.4~~4.13 as such fees are incurred upon the written request of such Indemnified Party. (d) In the event that Parent, the Surviving Company or any of their respective Subsidiaries (or any of their respective successors or assigns) shall (i) consolidate or merge with any other Person and shall not be the continuing or surviving corporation or entity in such consolidation or merger, or (ii) sell or transfer a substantial portion of their respective assets to any other Person, then in each case, to the extent necessary 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 4.13(b) (and their respective heirs and representatives), proper provision shall be made so that the continuing or surviving corporation or entity or the purchaser or transferee entity, as applicable (or its successors or assigns, if applicable) shall assume the obligations set forth in this Section 4.13.

Appears in 1 contract

Samples: Merger Agreement (Bioventus Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing as~~ From and after the Effective Time, the Surviving Corporation shall indemnify and hold harmless each present and former director and officer of ~~the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company~~ Sterling or any of its Subsidiaries and any person who is or was serving at or prior to the Effective Time as a director or officer (or in a like capacity) of another person at the request of Sterling or any of its Subsidiaries (collectively, the “Sterling Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, and whether arising before or after the Effective Time, arising out of the fact that such person is or was a director or officer of Sterling or any of its Subsidiaries or serving as a director or officer (or in a like capacity) of another person at the request of Sterling or any of its Subsidiaries and in respect of any acts or omissions (or alleged acts or omissions) of or by any such Sterling Indemnified Party occurring (or alleged to have occurred) at or prior to the Effective Time (including the transactions contemplated by this Agreement), to the fullest extent permitted by applicable Law and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted by applicable Law; 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 Sterling Indemnified Party is not entitled to indemnification. (b) All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of any Sterling Indemnified Party as provided in the ~~Organizational Documents~~ Sterling Articles, Sterling’s Bylaws (or comparable organizational documents of ~~the Company or~~ Sterling’s Subsidiaries) and any ~~such Subsidiary, any employment agreement or~~ indemnification ~~agreement~~ agreements in ~~effect on~~ existence as of the date hereof ~~or otherwise (which~~ and set forth on Section 6.7(b) of the Sterling Disclosure Schedule, shall ~~be assumed by Parent~~ survive the Merger and ~~the Surviving Company) will~~ shall continue in full force and effect in accordance with their terms, and ~~Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing~~shall not be amended, ~~from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now,~~ repealed or ~~has been at any time prior to the date~~ otherwise modified for a period of this Agreement or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or six years after the Effective Time ~~and whether asserted or claimed prior to~~in any manner that would adversely affect the rights thereunder of such Indemnified Parties, ~~at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based~~ it being understood that nothing in ~~whole or in part on, or arising in whole or in part out of, or pertaining to,~~ this ~~Agreement or the Transactions, in each case,~~ sentence shall require any amendment to the ~~fullest extent permitted under applicable Law (and Parent and~~ articles of incorporation or bylaws of the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and Corporation so long as the Surviving ~~Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use~~ Corporation otherwise complies with its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Personobligations hereunder. (bc) For a period of six (6) years ~~following~~ after the Effective Time, ~~Parent and~~ the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and Corporation shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement maintained in effect on the ~~date hereof or otherwise, regardless~~ current policies of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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~~insurance maintained by Sterling (provided, ~~fiduciary liability insurance and employment practices liability insurance in an amount and scope~~ that the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least ~~as favorable as~~ the ~~Company’s existing policies~~ same coverage and amounts containing terms and conditions which are no less advantageous to the insured) with respect to ~~matters, acts~~ claims arising from facts or ~~omissions existing or occurring~~ events which occurred at or ~~prior to~~ before the Effective Time; provided, however, that ~~Parent~~ the Surviving Corporation shall not be ~~required~~ obligated to ~~pay~~ make annual premium payments for such insurance to the extent such premiums exceed the amount set forth on Section 6.7(c)(i) of the Sterling Disclosure Schedule (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 ~~for~~ equal to the ~~D&O Insurance in excess of (for any one year) 150%~~ Premium Cap. In lieu of the ~~annual premium paid by~~ foregoing, Umpqua, or Sterling upon the ~~Company for such insurance as~~ consent of ~~the date of this Agreement; and provided~~Umpqua, ~~further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to~~ may obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year prepaid “tail” policy under Sterling’s existing directors and officers insurance policy providing equivalent coverage to that described in the preceding sentence for an aggregate price of no more than the amount set forth on Section 6.7(c)(ii) of the Sterling Disclosure Schedule. Sterling and Umpqua agree to cooperate in good faith in connection with obtaining such “tail” policy, ~~for a cost not exceeding such amount~~including with respect to determining terms and pricing. (ed) ~~In the event that Parent,~~ If the Surviving ~~Company~~ Corporation or ~~any Subsidiary of the Surviving Company, or any of their respective~~ its successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving ~~company~~ corporation or entity of in such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any ~~Person~~person, then, in each ~~such~~ case, to the extent necessary, proper ~~provisions~~ provision shall be made so that the successors and assigns of ~~Parent,~~ the Surviving ~~Company or such Subsidiary of the Surviving Company, as the case may be,~~ Corporation shall also assume the obligations set forth in this Section ~~6.4~~6.7. The rights of each Sterling Indemnified Party under this Section 6.7 shall be in addition to any rights such person may have under the Sterling Articles and Sterling Bylaws (or comparable organizational documents of Sterling’s Subsidiaries), or under applicable Law or any agreement of any Sterling Indemnified Party with Sterling or any of its Subsidiaries (including the indemnification agreements in existence as of the date hereof and set forth on Section 6.7(d) of the Sterling Disclosure Schedule) which shall survive the Merger and shall continue to be in full force and effect in accordance with their terms, and shall not be amended, repealed or otherwise modified. The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Sterling Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4.

Appears in 1 contract

Samples: Merger Agreement (Sterling Financial Corp /Wa/)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing as~~ From and after the Effective Time, the Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted by Law, each present and former director, officer or employee of the ~~date~~ Company and its Subsidiaries (in each case, for actions taken in such capacity) (collectively, the “Company Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, whether arising before or after the Effective Time, arising out of ~~this Agreement to indemnification~~the fact that such person is or was a director, ~~advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers~~ officer or ~~employees~~ employee of the Company or any of its Subsidiaries ~~as provided in the Organizational Documents of the Company~~ and pertaining to matters existing or ~~any such Subsidiary, any employment agreement~~ occurring at or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, ~~a director or officer of~~ including the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or transactions contemplated by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this ~~Agreement or the Transactions, in each case~~Agreement, to the fullest extent ~~permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance~~ such persons are entitled to be indemnified as of the ~~final disposition~~ 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 applicable to such ~~Proceeding to each~~ person. The Surviving Corporation shall also advance expenses as incurred by such Company Indemnified ~~Person~~ Party to the fullest extent permitted ~~under applicable Law). Without limiting~~ by the ~~foregoing~~NYBCL, in the ~~event any such Proceeding is brought~~ Company Certificate, the Company Bylaws or ~~threatened to be brought against any Indemnified Persons (whether arising before~~ the governing or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense organizational documents of any ~~such matter. With respect to any determination~~ Subsidiary of ~~whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have~~ the ~~right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving~~ Company, as ~~applicable (which approval shall not be unreasonably withheld or delayed)~~applicable, ~~and who has not otherwise performed material services for~~ as of the date of this Agreement; provided that, if requested by Parent~~, Surviving Company~~, the Company ~~or the~~ Indemnified ~~Person within the last three years~~Party to whom expenses are advanced provides an undertaking (in reasonable and customary form) to repay such advances if it is determined that such Company Indemnified Party is not entitled to indemnification. ~~Notwithstanding anything~~ A Company Indemnified Party shall be entitled to the ~~contrary contained~~ reimbursement of reasonable legal expenses incurred in ~~this Agreement, Parent shall not (~~any successful claim hereunder to enforce its rights to indemnification and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Personadvancement. (b) For a period of six (6) years ~~following~~ after the Effective Time, ~~Parent and~~ the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and Corporation shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement maintained in effect on the ~~date hereof or otherwise, regardless~~ current policies of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability~~ insurance ~~and employment practices liability insurance in an amount and scope~~ maintained by the Company (provided that the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least ~~as favorable as~~ the ~~Company’s existing policies~~ same coverage and amounts containing terms and conditions that are no less advantageous to the insured) with respect to ~~matters, acts~~ claims arising from facts or ~~omissions existing or occurring~~ events that occurred at or ~~prior to~~ before the Effective Time; provided, however, that Parent shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for~~ basis, an amount that, in the ~~D&O Insurance in excess of (for any one year) 150~~aggregate, exceeds 200% of the current annual premium paid as of the date hereof by the Company for such insurance as (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 an aggregate cost equal to the Premium Cap. In lieu of the ~~date~~ foregoing, the Company, in consultation with Parent, but only upon the prior written consent of ~~this Agreement;~~ Parent, which consent may not be unreasonably denied, may (and ~~provided~~at the request of Parent, ~~further, that if~~ the ~~annual premiums of such insurance coverage exceed such amount, Parent~~ Company shall ~~be obligated to~~ use its reasonable best efforts to) obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year prepaid “tail” policy under the Company’s existing directors and officers insurance policy 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, ~~for a cost~~ in the aggregate, does not ~~exceeding~~ exceed the Premium Cap and, in such ~~amount~~case, Parent shall not have any further obligations under this Section 6.7(b), other than to maintain such prepaid “tail” policy. (ec) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of~~ If the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ Surviving Corporation or any of its ~~Subsidiaries~~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 ~~under~~ substantially all of its assets or deposits to any ~~applicable contracts~~ other entity or ~~Law~~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 ~~Surviving~~ Company ~~shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in~~ under this Section ~~6.4~~6.7 shall not be terminated or modified in a manner so as to adversely affect the Company Indemnified Party 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 1 contract

Samples: Merger Agreement (Oceanfirst Financial Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) From and after the Effective Time, Parent ~~agrees that all rights existing as~~ shall indemnify and hold harmless, to the fullest extent permitted by applicable law, each present and former director, officer or employee of the ~~date of this Agreement to indemnification, advancement of expenses~~ Company and ~~exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees~~ its Subsidiaries as well as fiduciaries of the Company or any of its Subsidiaries ~~as provided in the Organizational Documents of~~ under the Company Benefit Plans (in each case, when acting in such capacity) (collectively, the “Company Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection with any ~~such Subsidiary~~threatened or actual claim, ~~any employment agreement~~ action, suit, proceeding or ~~indemnification agreement in effect on the date hereof~~ investigation, whether civil, criminal, administrative or ~~otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms~~investigative, ~~and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and~~ whether arising before or after the Effective Time, ~~Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now~~arising in whole or in part out of, or ~~has been at any time prior to~~ pertaining to, the ~~date of this Agreement~~ fact that such person is or ~~who becomes prior to the Effective Time~~was a director, ~~a director~~ officer or ~~officer~~ employee of the Company or any of its ~~Subsidiaries~~ Subsidiaries, is or was a fiduciary under any of the Company Benefit Plans, or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against~~ person and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time, including matters, acts or omissions occurring in connection with the consideration and approval of this Agreement and the consummation of the transactions contemplated by this Agreement; and Parent shall also advance expenses as incurred by such Company Indemnified Party to the fullest extent permitted by applicable law, provided that the Company Indemnified Party to whom expenses are advanced provides an undertaking, in a reasonable and customary form, to repay such advances if it is ultimately determined that such Company Indemnified Party is not entitled to indemnification. (b) Subject to the following sentence, for a period of six (6) years after the Effective Time, Parent shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance maintained by the Company and/or its Subsidiaries and any similar policies covering fiduciaries under the Company Benefit Plans (provided, that Parent 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 insured) with respect to claims against the present and former officers and directors of the Company 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~~, however~~, that Parent shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~300% of the current annual premium paid as of the date hereof by the Company for such insurance as (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 available at an annual premium equal to the Premium Cap. In lieu of the ~~date~~ foregoing, the Company, in consultation with, but only upon the consent of, Parent, may (and at the request of ~~this Agreement; and provided~~Parent, ~~further, that if~~ the ~~annual premiums of such insurance coverage exceed such amount, Parent~~ Company shall ~~be obligated to~~ use its reasonable best efforts to) obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year “tail” policy under the Company’s existing directors and officers insurance policy and any similar policy covering fiduciaries under the Company Benefit Plans 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, ~~for~~ in the aggregate, does not exceed the Premium Cap. If the Company purchases such a ~~cost not exceeding~~ “tail policy,” Parent shall maintain such ~~amount~~“tail policy” in full force and effect and continue to honor its obligations thereunder. (ec) ~~In the event that Parent, the Surviving Company or any Subsidiary~~ The obligations of the ~~Surviving Company, or any of their respective successors or assigns, (i) consolidates with or merges into any other Person~~ Parent and the Company under this Section 6.7 shall not be terminated or modified after the ~~continuing~~ Effective Time in a manner so as to adversely affect any Company Indemnified Party or ~~surviving company or entity~~ any other person entitled to the benefit of ~~such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that~~ this Section 6.7 without the ~~successors and assigns of Parent, the Surviving Company or such Subsidiary~~ prior written consent of the ~~Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4.~~ affected Company Indemnified Party or affected person. (d) The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ If Parent or any of its ~~Subsidiaries~~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 ~~under~~ substantially all of its assets or deposits to any ~~applicable contracts~~ other entity or ~~Law.~~ engage 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 ~~Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other~~ obligations ~~provided~~ set forth in this Section ~~6.4~~6.7.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Mb Financial Inc /Md)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, ~~Parent and~~ the Surviving ~~Company~~ Corporation shall, ~~jointly and severally~~to the fullest extent permitted by applicable law, indemnify, defend and hold ~~harmless~~ harmless, and provide advancement of expenses to, each ~~Person~~ person who is now, or has been at any time prior to the date ~~of this Agreement~~ hereof or who becomes prior to the Effective Time, a an officer, director or ~~officer~~ employee of ~~the Company~~ Bank One or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified ~~Persons~~Parties”) against ~~and from~~ all losses, claims, damages, costs, ~~fines~~expenses, ~~penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities,~~ liabilities or judgments ~~and~~ or amounts that are paid in settlement ~~of,~~ of or ~~incurred~~ in connection with any ~~threatened~~ claim, action, suit, proceeding or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities investigation based in whole or in part ~~on,~~ on or arising in whole or in part out ofof the fact that such person is or was a director, officer or employee of Bank One or any Subsidiary of Bank One, and pertaining to any matter existing or occurring, or ~~pertaining to~~any acts or omissions occurring, ~~this Agreement~~ at or ~~the Transactions, in each case,~~ prior to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), whether asserted or claimed prior to, or at or after, the Effective Time (i) including matters, acts or omissions occurring in connection with the ~~Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent~~ approval of this Agreement and the ~~Surviving Company shall pay all reasonable fees and expenses~~ consummation of the transactions contemplated hereby) (“Indemnified Liabilities”) to the same extent such ~~counsel for the Indemnified Persons as promptly as statements therefor~~ persons are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent indemnified or ~~Surviving Company under this Section 6.4, such Indemnified Person shall~~ have the right to ~~require that such determination be made~~ advancement of expenses as of the date of this Agreement by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person Bank One pursuant to ~~this Agreement~~Bank One’s Certificate of Incorporation, ~~unless such settlement~~By-laws and indemnification agreements, ~~compromise~~if any, ~~consent or termination includes an unconditional release~~ in existence on the date hereof with any directors, officers and employees of ~~all Indemnified Persons from all liability arising out of such Proceeding~~ Bank One and ~~does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person~~its Subsidiaries. (b) For a period of six ~~(6)~~ years ~~following~~ after the Effective Time, ~~Parent and~~ the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and Corporation shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement maintained in effect on the ~~date hereof or otherwise, regardless~~ current policies of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability~~ insurance ~~and employment practices liability insurance in an amount and scope~~ maintained by Bank One (provided that the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least ~~as favorable as~~ the ~~Company’s existing policies~~ same coverage and amounts containing terms and conditions which are no less advantageous to the insured) with respect to ~~matters, acts~~ claims arising from facts or ~~omissions existing or occurring~~ events which occurred at or ~~prior to~~ before the Effective Time; provided, however, that ~~Parent~~ the Surviving Corporation shall not be ~~required~~ obligated to ~~pay~~ make annual premium payments for such insurance to the extent such premiums exceed 250% of the premiums paid as of the date hereof by Bank One for such insurance (“Bank One’s Current Premium”), and if such premiums for such insurance would at any time exceed 250% of Bank One’s Current Premium, 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 ~~for the D&O Insurance in excess of (for any one year) 150~~equal to 250% of Bank One’s Current Premium. In the ~~annual premium paid~~ event that JPMorgan Chase acts as its own insurer for its directors and officers generally with respect to matters typically covered by ~~the Company for~~ a directors’ and officers’ liability insurance policy, JPMorgan Chase’s obligations under this Section 5.11(b) may be satisfied by such ~~insurance~~ self-insurance, so long as JPMorgan Chase’s senior debt ratings by Standard & Poor’s Corporation and Mxxxx’x Investors Services, Inc. are no lower than such ratings as in effect as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amount. (ec) In The Surviving Corporation shall pay (as incurred) all expenses, including reasonable fees and expenses of counsel, that an Indemnified Person may incur in enforcing the ~~event that Parent,~~ indemnity and other obligations provided for in this Section 5.11. (d) If the Surviving ~~Company or any Subsidiary of the Surviving Company,~~ Corporation or any of ~~their respective~~ its successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving ~~company~~ 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~~person, then, and in each such case, to the extent necessary, proper ~~provisions~~ provision shall be made so that the successors and assigns of ~~Parent,~~ the Surviving ~~Company or such Subsidiary of the Surviving Company~~Corporation, as the case may be, shall assume the obligations set forth in this Section ~~6.4.~~ 5.11. (e) The provisions of this Section ~~6.4~~ 5.11 (i) are intended to be for the benefit of, and shall be enforceable by, ~~the parties and~~ each ~~Person entitled to indemnification~~Indemnified Party, ~~exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and ~~representatives. The rights of the Indemnified Persons under this Section 6.4~~ representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any ~~rights~~ such ~~Indemnified Persons~~ person may have ~~under the Organizational Documents of the Company~~ by contract or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4otherwise.

Appears in 1 contract

Samples: Merger Agreement (J P Morgan Chase & Co)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing~~ From and after the Effective Time, Purchaser shall indemnify and hold harmless, to the fullest extent permitted by applicable law, the Company Articles or Company Bylaws as of in effect on the date of this Agreement ~~to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers~~ or ~~employees of~~ any agreements providing for indemnification by the Company or any of its ~~Subsidiaries as provided in the Organizational Documents~~ Subsidiaries, each present and former director, officer or employee of the Company and its Subsidiaries (in each case, when acting in such capacity) (collectively, the “Company Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection with any ~~such Subsidiary~~threatened or actual claim, ~~any employment agreement~~ action, suit, proceeding or ~~indemnification agreement in effect on the date hereof~~ investigation, whether civil, criminal, administrative or ~~otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms~~investigative, ~~and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and~~ whether arising before or after the Effective Time, ~~Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now~~arising in whole or in part out of, or ~~has been at any time prior to~~ pertaining to, the ~~date of this Agreement~~ fact that such person is or ~~who becomes prior to the Effective Time~~was a director, ~~a director~~ officer or ~~officer~~ employee of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against~~ person and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time, including matters, acts or omissions occurring in connection with the consideration and approval of this Agreement and the transactions contemplated by this Agreement; and Purchaser shall also advance expenses as incurred by such Company Indemnified Party to the fullest extent permitted by applicable law, the Company Articles or Company Bylaws as in effect on the date of this Agreement or any agreements providing for indemnification by the Company or any of its Subsidiaries. (b) For a period of six (6) years after the Effective Time, Purchaser shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance maintained by the Company (provided, that Purchaser 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 insured) with respect to claims against the present and former officers and directors of the Company 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, ~~however,~~ that ~~Parent~~ Purchaser shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~300% of the current annual premium paid as of the date hereof by the Company for such insurance as (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then Purchaser shall cause to be maintained policies of insurance which, in Purchaser’s good faith determination, provide the maximum coverage available at an annual premium equal to the Premium Cap. In lieu of the ~~date of this Agreement; and provided~~foregoing, ~~further, that if~~ the ~~annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy~~ Purchaser or (with the ~~greatest coverage available, with respect to facts, acts, events~~ Purchaser’s permission) the Company may obtain at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year “tail” policy under the Company’s existing directors and officers insurance policy 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, ~~for~~ in the aggregate, does not exceed the Premium Cap. If the Purchaser or Company purchases such a ~~cost not exceeding~~ “tail policy,” Purchaser shall maintain such ~~amount~~“tail policy” in full force and effect from and after the Effective Time and continue to honor its obligations thereunder. (ec) ~~In the event that Parent, the Surviving Company or any Subsidiary~~ The obligations of the ~~Surviving Company, or any of their respective successors or assigns, (i~~Purchaser and the Company under this Section 6.7(c) ~~consolidates with or merges into any other Person and~~ shall not be terminated or modified after the ~~continuing~~ Effective Time in a manner so as to adversely affect any Company Indemnified Party or ~~surviving company~~ any other person entitled to the benefit of this Section 6.7(c) without the prior written consent of the affected Company Indemnified Party or ~~entity~~ affected person. The rights of ~~such consolidation or merger or (ii) transfers all or substantially all of its properties and assets~~ each Company Indemnified Party under this Section 6.7 shall be in addition to any ~~Person~~rights such person may have under the MGCL, ~~then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company~~ any other applicable law or ~~such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4.~~ agreement. (d) The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ If Purchaser or any of its ~~Subsidiaries~~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 ~~under~~ substantially all of its assets or deposits to any ~~applicable contracts~~ other entity or ~~Law. Parent~~ engage in any similar transaction, then in each case, Purchaser will cause proper provision to be made so that the successors and assigns of Purchaser will expressly assume the ~~Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other~~ obligations ~~provided~~ set forth in this Section ~~6.4~~6.7.

Appears in 1 contract

Samples: Agreement and Plan of Merger (People's United Financial, Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, ~~Parent~~ each of Purchaser and the Surviving ~~Company shall, jointly and severally, indemnify, defend~~ Corporation shall indemnify and hold harmless each ~~Person who is now~~present and former director, officer or ~~has been at any time prior to the date~~ employee of ~~this Agreement or who becomes prior to the Effective Time, a director or officer of the~~ Company ~~or any of~~ and its Subsidiaries ~~or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation~~(in each case, ~~partnership~~when acting in such capacity) (collectively, ~~limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (~~the “Company Indemnified ~~Persons~~Parties”) against ~~and from all losses~~any costs or expenses (including reasonable attorneys’ fees), ~~claims, damages, costs~~judgments, fines, ~~penalties~~losses, ~~expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of,~~ damages or liabilities incurred in connection with any threatened or actual ~~Proceeding to which such Indemnified Person is~~claim, ~~was~~ action, suit, proceeding or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacityinvestigation, whether ~~pertaining to any act~~ civil, criminal, administrative or ~~omission occurring or existing prior to~~investigative, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), ~~(i)~~ arising out of the ~~Indemnified Persons may retain~~ 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 ~~Company’s regularly engaged legal counsel~~ Effective Time, including the transactions contemplated by this Agreement to the same extent as such persons are indemnified as of the date of this Agreement by Company pursuant to the Company Articles, Company Bylaws, the governing or ~~other counsel satisfactory to such Indemnified Person,~~ organizational documents of any Subsidiary of Company and ~~Parent~~ any indemnification agreements in existence as of the date hereof; and Purchaser and the Surviving Corporation shall also advance expenses as incurred by such Company ~~shall pay all reasonable fees and~~ Indemnified Party to the same extent as such persons are entitled to advancement of expenses as of ~~such counsel for~~ the ~~Indemnified Persons as promptly as statements therefor are received~~date of this Agreement by Company pursuant to the Company Articles, ~~and (ii)~~ Company’s Bylaws, the ~~Surviving Company shall use its reasonable best efforts to assist in the defense~~ governing or organizational documents of any ~~such matter. With respect to~~ Subsidiary of Company and any ~~determination~~ indemnification agreements in existence as of ~~whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4~~the date hereof; provided, ~~such Indemnified Person shall have the right to require that such determination be made by special~~that, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Companyif required, the Company ~~or the~~ Indemnified ~~Person within the last three years. Notwithstanding anything~~ Party to ~~the contrary contained in this Agreement, Parent shall~~ whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Company Indemnified Party is not ~~(and Parent shall cause the Surviving Company not to) settle or compromise or consent~~ entitled to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Personindemnification. (b) For a period of six (6) years ~~following~~ after the Effective Time, ~~Parent and~~ the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and Corporation shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement maintained in effect on the ~~date hereof or otherwise, regardless~~ current policies of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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~~insurance maintained by Company (provided, ~~fiduciary liability insurance and employment practices liability insurance in an amount and scope~~ that the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least ~~as favorable as~~ the ~~Company’s existing policies~~ same coverage and amounts containing terms and conditions which are no less advantageous to the insured) with respect to ~~matters, acts or omissions existing or occurring at or prior to~~ claims against the Effective Time; provided, however, that Parent shall not be required to pay an annual premium for the D&O Insurance in excess of (for any one year) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement; present and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amount.former officers (ec) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of~~ If the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ Surviving Corporation or any of its ~~Subsidiaries~~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 ~~under~~ substantially all of its assets or deposits to any ~~applicable contracts~~ other entity or ~~Law. Parent and~~ engage in any similar transaction, then in each case, the Surviving ~~Company shall pay all expenses, including attorneys’ fees,~~ Corporation will cause proper provision to be made so that ~~may be incurred by any Indemnified Person in enforcing~~ the ~~indemnity~~ successors and ~~other~~ assigns of the Surviving Corporation will expressly assume the obligations ~~provided~~ set forth in this Section ~~6.4~~6.7.

Appears in 1 contract

Samples: Merger Agreement (Capital Bancorp Inc)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing~~ From and after the Effective Time, the Surviving Entity shall, subject to applicable law, indemnify, defend and hold harmless and shall advance expenses as incurred, in each case to the extent such persons are indemnified as of the date of this Agreement by CFB pursuant to ~~indemnification~~the CFB Articles, ~~advancement~~ the CFB Bylaws, the governing or organizational documents of ~~expenses~~ any Subsidiary of CFB and ~~exculpation from Indemnified Liabilities~~ any indemnification agreements in ~~favor~~ existence as of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof ~~or otherwise (which shall be assumed by Parent~~ and ~~the Surviving Company~~disclosed in Section 6.7(a) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a director or officer of the ~~Company~~ CFB Disclosure Schedule, each present and former director, officer or ~~any~~ employee of CFB and its Subsidiaries ~~or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation~~(in each case, ~~partnership~~when acting in such capacity) (collectively, ~~limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (~~the “CFB Indemnified ~~Persons~~Parties”) against ~~and from all losses~~any costs or expenses (including reasonable attorneys’ fees), ~~claims, damages, costs~~judgments, fines, ~~penalties~~losses, ~~expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of,~~ damages or liabilities incurred in connection with any threatened or actual ~~Proceeding to which such Indemnified Person is~~claim, ~~was~~ action, suit, proceeding or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacityinvestigation, whether ~~pertaining to any act~~ civil, criminal, administrative or ~~omission occurring or existing prior to~~investigative, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of the fact that such ~~Proceeding and does not include the imposition~~ person is or was a director, officer or employee of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company CFB or any of its Subsidiaries or, at CFB’s request, of ~~any Person to indemnification~~another domestic or foreign corporation, ~~exculpation and expense advancement except to the extent required by applicable Law. Parent shall~~non-profit corporation, partnership, joint venture, trust, limited liability company, employee benefit plan or other entity, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts pertaining to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions 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 transactions contemplated by this Agreement; provided, ~~however~~that in the case of advancement of expenses, any CFB Indemnified party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that ~~Parent~~ such CFB Indemnified Party is not entitled to indemnification. (b) From and after the Effective Time, the Surviving Entity shall, subject to applicable law, indemnify, defend and hold harmless and shall ~~not be required~~ advance expenses as incurred, in each case to ~~pay an annual premium for~~ the ~~D&O Insurance in excess of (for any one year) 150% of the annual premium paid by the Company for~~ extent such ~~insurance~~ persons are indemnified as of the date of this ~~Agreement;~~ Agreement by BYFC pursuant to the BYFC Certificate, the BYFC Bylaws, the governing or organizational documents of any Subsidiary of BYFC and ~~provided~~any indemnification agreements in existence as of the date hereof and disclosed in Section 6.7(b) of the BYFC Disclosure Schedule, ~~further~~each present and former director, officer or employee of BYFC and its Subsidiaries (in each case, when acting in such capacity) (collectively, the “BYFC Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, whether arising before or after the Effective Time, arising out of the fact that ~~if the annual premiums~~ such person is or was a director, officer or employee of ~~such insurance coverage exceed such amount~~BYFC or any of its Subsidiaries or, ~~Parent shall be obligated~~ at BYFC’s request, of another domestic or foreign corporation, non-profit corporation, partnership, joint venture, trust, limited liability company, employee benefit plan or other entity, and pertaining to ~~obtain a policy with the greatest coverage available, with respect to facts, acts, events~~ matters existing or ~~omissions~~ occurring at or prior to the Effective Time, ~~for~~ including matters, acts or omissions 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, any BYFC Indemnified party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such BYFC Indemnified Party is not entitled to indemnification. (c) For a ~~cost not exceeding such amount~~period of six years after the Effective Time, the Surviving Entity shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance maintained by CFB (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 insured) with respect to claims arising from facts or events which occurred at or before the Effective Time. In lieu of the foregoing, BYFC or CFB, in consultation with the other party, may obtain at or prior to the Effective Time a six-year “tail” policy under CFB’s existing directors’ and officers’ insurance policy providing equivalent coverage to that described in the preceding sentence. (d) For a period of six years after the Effective Time, the Surviving Entity shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance maintained by BYFC (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 insured) with respect to claims arising from facts or events which occurred at or before the Effective Time. In lieu of the foregoing, BYFC or CFB, in consultation with the other party, may obtain at or prior to the Effective Time a six-year “tail” policy under BYFC’s existing directors’ and officers’ insurance policy providing equivalent coverage to that described in the preceding sentence. (e) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each CFB Indemnified Party, each BYFC Indemnified Party, and each ~~Person entitled to indemnification, exculpation, insurance coverage~~ of his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ respective heirs and representatives. ~~The rights of~~ If the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ Surviving Entity or any of its ~~Subsidiaries~~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 ~~under~~ (ii) transfers all or substantially all of its assets or deposits to any ~~applicable contracts~~ other person or ~~Law. Parent and~~ engages in any similar transaction, then in each such case, the Surviving ~~Company shall pay all expenses, including attorneys’ fees,~~ Entity will cause proper provision to be made so that ~~may be incurred by any Indemnified Person in enforcing~~ the ~~indemnity~~ successors and ~~other~~ assigns of the Surviving Entity will expressly assume the obligations ~~provided~~ set forth in this Section ~~6.4~~6.7.

Appears in 1 contract

Samples: Merger Agreement (Broadway Financial Corp \De\)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the ~~Effective Time~~Closing Date, ~~Parent and~~ the Surviving ~~Company~~ Corporation shall, ~~jointly and severally~~to the fullest extent permitted by applicable Law, indemnify, defend and hold ~~harmless~~ harmless, and provide advancement of expenses to, each Person who is now, or has been at any time prior to the date ~~of this Agreement~~ hereof or who becomes prior to the ~~Effective Time~~Closing Date, a an officer, director or ~~officer~~ employee of Buyer or the Company or any of ~~its~~ their respective Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified ~~Persons”~~Parties“) against ~~and from~~ all losses, claims, damages, costs, ~~fines~~expenses, ~~penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities,~~ liabilities or judgments ~~and~~ or amounts that are paid in settlement ~~of,~~ of or ~~incurred~~ in connection with any ~~threatened~~ claim, action, suit, proceeding or ~~actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based,~~ investigation based in whole or in ~~part,~~ part on or ~~arising,~~ arising in whole or in ~~part,~~ part out of the fact that such Person is or was a director, ~~officer~~officer or employee of Buyer, ~~employee or agent of~~ the Company or any ~~of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation~~their respective Subsidiaries, ~~partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether~~ and pertaining to any ~~act~~ matter existing or ~~omission occurring~~ occurring, or ~~existing prior to~~any acts or omissions occurring, at or ~~after~~ prior to the ~~Effective Time and~~ Closing Date, whether asserted or claimed prior to, or at or ~~after~~ after, the ~~Effective Time~~ Closing Date (~~“Indemnified Liabilities”)~~including matters, ~~including all Indemnified Liabilities based~~ acts or omissions occurring in ~~whole or in part on, or arising in whole or in part out of, or pertaining to,~~ connection with the approval of this Agreement or and the ~~Transactions, in each case,~~ consummation of the transactions contemplated hereby) to the ~~fullest~~ same extent ~~permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any~~ such ~~Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought~~ Persons are indemnified or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to ~~require that such determination be made~~ advancement of expenses as of the date hereof by ~~special, independent legal counsel selected by~~ Buyer or the ~~Indemnified Person and approved by Parent or Surviving~~ Company, as ~~applicable (~~the case may be, under the Company’s Restated Certificate, Restated Bylaws or any other written indemnification agreements to which ~~approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company,~~ the Company or is party, in each case as in effect on the ~~Indemnified Person within~~ date hereof and in the ~~last three years. Notwithstanding anything~~ form provided to Buyer prior to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Persondate hereof. (b) For a period of six ~~(6)~~ years ~~following~~ after the ~~Effective Time~~Closing Date, ~~Parent~~ Buyer and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and Sub shall cause the Surviving Corporation to maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company (provided that the Company 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 insured) with respect to claims arising from facts or events that occurred at or before the Closing Date; provided that if the aggregate annual premiums for such policies at any time during such period will exceed 200% of the per annum premium rate paid by the Company and its Subsidiaries toas of the date hereof for such policies, ~~fulfill~~ then the Surviving Corporation shall only be required to provide such coverage as will then be available at an annual premium equal to 200% of such rate; and ~~honor any indemnification, expense advancement~~ provided further that the requirements of this Section 6.5(b) may at the election of Buyer and Sub be satisfied by the purchase of one or ~~exculpation agreements between~~ more “tail” policies prior to the ~~Company~~ Effective Time providing for coverage for an aggregate period of six years after the Effective Time for acts or ~~any of its Subsidiaries and any of its directors, officers~~ omissions occurring at or ~~employees existing immediately~~ prior to the Effective Time. (c) ~~To the extent permitted by applicable Law, Parent and the Surviving~~ The Company shall ~~indemnify any Indemnified Person against~~ pay (as incurred) all expenses, including reasonable ~~costs~~ fees and expenses ~~(including reasonable attorneys’ fees~~ of counsel, that an Indemnified Party may incur in enforcing the indemnity and ~~expenses), such amounts to be payable~~ other obligations provided for in ~~advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under~~ this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder6.5. (d) ~~Parent and~~ If, following the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time; provided, however, that Parent shall not be required to pay an annual premium for the D&O Insurance in excess of (for any one year) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amount. (e) In the event that ParentClosing Date, the Surviving ~~Company or any Subsidiary of the Surviving Company,~~ Corporation or any of ~~their respective~~ its successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving ~~company~~ 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 ~~provisions~~ provision shall be made so that the successors and assigns of ~~Parent,~~ the Surviving ~~Company~~ Corporation or ~~such Subsidiary of the Surviving Company~~its successors or assigns, as the case may be, shall assume the obligations set forth in this Section ~~6.4.~~ 6.5. (e) The provisions of this Section ~~6.4~~ 6.5(e) are intended to be for the benefit of, and shall be enforceable by, ~~the parties and~~ each ~~Person entitled to indemnification~~Indemnified Party, ~~exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and ~~representatives. The rights of the Indemnified Persons under this Section 6.4~~ representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any ~~rights~~ such ~~Indemnified Persons~~ Person may have ~~under the Organizational Documents of the Company~~ by contract or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4otherwise.

Appears in 1 contract

Samples: Merger Agreement (Orphan Medical Inc)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the ~~Effective Time~~Closing Date, ~~Parent and the Surviving Company shall, jointly and severally, indemnify, defend~~ Buyer shall cause Jamestown to indemnify and hold harmless each ~~Person who is now~~present and former director and officer (in each case, for acts or ~~has been at any time prior~~ failures to the date of this Agreement or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise act in such capacity) (the “Indemnified ~~Persons~~Parties”) ), against ~~and from all~~ any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, ~~damages~~damages or liabilities (collectively, ~~costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or~~ “Costs”) incurred in connection with any ~~threatened~~ claim, action, suit, proceeding or ~~actual Proceeding to which such Indemnified Person is~~investigation, ~~was~~ whether civil, criminal, administrative or ~~becomes a party or is otherwise involved (including as a witness) based~~investigative, ~~in whole or in part, on or arising, in whole or in part,~~ arising out of ~~the fact that such Person is~~ matters existing or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring ~~or existing prior to,~~ at or ~~after~~ prior to the ~~Effective Time and~~ Closing Date, whether asserted or claimed prior to, at or after the ~~Effective Time~~ Closing Date (~~“Indemnified Liabilities”),~~ including ~~all Indemnified Liabilities based in whole or in part on, or~~ any matters arising in ~~whole or in part out of, or pertaining to, this Agreement or~~ connection with the Contemplated Transactions~~, in each case~~), to the fullest extent permitted ~~under~~ by applicable ~~Law (and Parent~~ law and the ~~Surviving Company shall~~governing documents of Jamestown, ~~jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person~~ except to the ~~fullest~~ extent ~~permitted under applicable Law). Without limiting the foregoing~~such Costs were incurred as a result of such Indemnified Party’s gross negligence, ~~in the event any such Proceeding is brought~~ willful misconduct or ~~threatened to be brought against any Indemnified Persons~~ breach of this Agreement (~~whether arising before or after the Effective Time),~~ b) The Operating Companies shall (i) maintain the existing directors and officers liability insurance policy until such time as all indemnification obligations in favor of Buyer pursuant to ARTICLE IV hereof have expired or, at its election, purchase a three-year tail prepaid insurance policy prior to the Closing Date on terms and conditions no less advantageous to the Indemnified ~~Persons may retain~~ Parties than the ~~Company’s regularly engaged legal counsel~~ existing directors and officers liability insurance maintained by or ~~other counsel satisfactory~~ for the benefit of Jamestown prior to the Closing Date and maintain such ~~Indemnified Person~~policy in full force and effect, for its full term, and ~~Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received,~~ continue to honor its obligations thereunder and (ii) ~~the Surviving Company shall use its reasonable best efforts~~ cause Buyer to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be ~~made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company,~~ named as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination a third party insured with respect to ~~any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless~~ such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Timeinsurance policy. (c) To Jamestown shall (i) purchase a three-year tail prepaid insurance policy prior to the ~~extent permitted~~ Closing Date on terms and conditions no less advantageous to the Indemnified Parties than the existing directors and officers liability insurance maintained by ~~applicable Law~~or for the benefit of Jamestown prior to the Closing Date and maintain such policy in full force and effect, ~~Parent~~ for its full term, and ~~the Surviving Company shall indemnify any Indemnified Person against all reasonable costs~~ continue to honor its obligations thereunder and ~~expenses~~ (~~including reasonable attorneys’ fees and expenses), such amounts~~ ii) cause Buyer to be ~~payable in advance upon request~~ named as ~~provided in Section 6.4(a), relating~~ a third party insured with respect to ~~the enforcement of~~ such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunderinsurance policy. (d) ~~Parent and~~ The Operating Companies shall (i) maintain the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and existing employment practices liability insurance of the Operating Companies or, at its election, purchase a three-year tail prepaid insurance policy prior to the Closing Date on terms and conditions no less advantageous to the Indemnified Parties than the existing employment practices liability insurance maintained by or for the benefit of Operating Companies prior to the Closing Date and maintain such policy in ~~an amount~~ full force and ~~scope at least~~ effect, for its full term, and continue to honor its obligations thereunder and (ii) cause Buyer to be named as ~~favorable as the Company’s existing policies~~ a third party insured with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time; provided, however, that Parent shall not be required to pay an annual premium for the D&O Insurance in excess of (for any one year) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amountpolicy. (e) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section 6.4 are intended to be for the benefit of, and shall be enforceable by, the parties and each Person entitled to indemnification, exculpation, insurance coverage or expense advancement or any other right pursuant to this Section 6.4, and his, her or its heirs and representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4.

Appears in 1 contract

Samples: Purchase Agreement (Cross Country Healthcare Inc)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees~~ From and after the Closing until the date that ~~all rights existing~~ is six (6) years after the Closing, Buyers shall cause each Company to indemnify, defend, hold harmless and reimburse, to the same extent each current and former director, officer and other board member of the Companies (in each case, when acting in such capacity), determined as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise Closing (the “~~Indemnified Persons~~Indemnitees”) ), has a right to indemnification as of the Execution Date against ~~and from all~~ any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, ~~damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of,~~ damages or liabilities incurred in connection ~~with any threatened or actual Proceeding to which such Indemnified Person is~~with, ~~was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part,~~ arising out of ~~the fact that such Person is~~ or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining otherwise related to any ~~act~~ actual or ~~omission~~ alleged Action in connection with, arising out of or otherwise related to matters existing or occurring ~~or existing prior to,~~ at or ~~after~~ prior to the ~~Effective Time and~~ Closing, whether asserted or claimed prior to, at or after the ~~Effective Time (“Indemnified Liabilities”)~~Closing, including ~~all Indemnified Liabilities based~~ in ~~whole~~ connection with (i) the Transactions and (ii) actions to enforce this Section 4.11 or ~~in part on~~any other indemnification or advancement right of any Indemnitee, ~~or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case,~~ and Buyers shall also advance expenses as incurred to the fullest extent ~~permitted under applicable Law (and Parent and~~ required by the ~~Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance~~ respective Organizational Documents of the ~~final disposition~~ applicable Company in effect as of the Execution Date; provided, that any ~~such Proceeding to each Indemnified~~ Person to ~~the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any~~ whom expenses are advanced provides an undertaking to repay such ~~Proceeding~~ advances if it is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to ultimately determined by final adjudication that such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is not entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Personindemnification. (b) ~~For a period of~~ Buyers shall cause the Companies to obtain with effect from the Closing Date and shall cause the applicable Company to maintain in effect for six (6) years ~~following~~ after the ~~Effective Time, Parent and the Surviving Company shall not amend, repeal~~ Closing Date (i) a “run-off” or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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,~~ insurance policy to the current policy for such Company and (ii) a fiduciary liability insurance policy, each with respect to matters occurring prior to the Closing, with terms, conditions, retentions and ~~employment practices~~ limits of liability ~~insurance in an amount and scope~~ that are at least as favorable to the insureds as ~~the~~ such Company’s existing policies with respect to ~~matters, acts or omissions~~ matters existing or occurring at or prior to the ~~Effective Time~~Closing (including in connection with the Transactions); provided, however, that ~~Parent~~ in no event shall Buyers be required to expend for such insurance policies an amount in excess of $500,000 in the aggregate (and if the aggregate price of such tail policies exceeds such amount, Buyers shall obtain the best insurance coverage reasonably available with respect to both policies whose cost is less than such amount). Notwithstanding the foregoing, Buyers and the Companies shall not be required to ~~pay an annual premium~~ provide any indemnification or advancement of expenses to any Indemnitee for matters that are not primarily related to the ~~D&O Insurance in excess of~~ Business. (c) During the six-year period from and after the Closing, all rights to indemnification and exculpation from liabilities for any one year) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events acts or omissions occurring prior to the ~~Effective Time~~Closing and rights to advancement of expenses relating thereto now existing in favor of any Indemnitee as provided in the Organizational Documents of the applicable Company or any indemnification agreement between such Indemnitee and the applicable Company, ~~for a cost~~ in each case, as in immediately prior to the Closing, shall not ~~exceeding~~ be amended, restated, amended and restated, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such ~~amount~~Indemnitee. (ed) ~~In the event that Parent, the Surviving~~ If any Buyer or Company ~~or any Subsidiary of the Surviving Company,~~ or any of their respective successors or ~~assigns,~~ assigns (i) ~~consolidates~~ shall consolidate with or ~~merges~~ merge into any other Person and shall not be the continuing or surviving ~~company or entity~~ Person of such consolidation or merger or (ii) ~~transfers~~ shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of ~~Parent,~~ such Buyer or the ~~Surviving~~ applicable Company ~~or such Subsidiary of the Surviving Company, as the case may be,~~ shall assume all of the obligations set forth in this Section ~~6.4.~~ 4.11. (e) The provisions of this Section ~~6.4~~ 4.11 are intended to be for the benefit of, and from and after the Closing shall be enforceable by, ~~the parties and~~ each ~~Person entitled to indemnification~~Indemnitee, ~~exculpation, insurance coverage or expense advancement or any other right pursuant to~~ who is an intended third-party beneficiary of this Section ~~6.4, and his, her or its heirs and representatives.~~ 4.11. (f) The rights of the ~~Indemnified Persons~~ Indemnitees under this Section ~~6.4 are~~ 4.11 shall be in addition to any rights such ~~Indemnified Persons~~ Indemnitees may have under the Organizational Documents of the ~~Company or any of its Subsidiaries~~applicable Company, or under any applicable ~~contracts~~ Contracts or ~~Law. Parent~~ Laws and nothing in this Agreement is intended to, shall be construed or shall release or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the ~~Surviving~~ applicable Company ~~shall pay all expenses~~for any of its directors, ~~including attorneys’ fees,~~ officers or other employees (it being understood and agreed that ~~may be incurred by any Indemnified Person in enforcing~~ the ~~indemnity and other obligations~~ indemnification provided for in this Section ~~6.4~~4.11 is not prior to or in substitution of any such claims under such policies).

Appears in 1 contract

Samples: Equity Purchase Agreement (Baxter International Inc)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing as of the date of this Agreement~~ The Parties shall cooperate and use their reasonable best efforts to ~~indemnification~~defend against and respond to any threatened or actual Proceeding, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or including any such ~~Subsidiary,~~ Proceeding in which any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person individual who is now, or has been at any time ~~prior to~~ before the date of this ~~Agreement~~ Agreement, or who becomes ~~prior to~~ before the Effective Time, a ~~director~~ director, officer or ~~officer~~ employee of the Company or any of its Subsidiaries or who is or was serving at the request of the Company or any of its Subsidiaries as a ~~director~~ director, officer or ~~officer~~ employee of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise~~ person (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified LiabilitiesParties”), ~~including all Indemnified Liabilities~~ is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining ~~to, this Agreement or the Transactions, in each case,~~ to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the ~~Indemnified Persons may retain the Company’s regularly engaged legal counsel~~ fact that he is or ~~other counsel satisfactory to such Indemnified Person~~was a director, ~~and Parent and the Surviving Company shall pay all reasonable fees and expenses~~ officer or employee of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to before the Effective Time, ~~“tail” insurance policies~~ or (~~collectively~~ii) this Agreement or any of the transactions contemplated by this Agreement, ~~the “D&O Insurance”) with a claims period of at least six years from the Effective Time from an insurance carrier with the same~~ whether asserted or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts arising before or ~~omissions existing or occurring at or prior to~~ after the Effective Time; provided, however, that ~~Parent~~ nothing in this provision will be construed to grant any person any right of indemnification other than as provided by the Company Articles, Company Regulations or applicable Law. All rights to indemnification, including advancement of expenses, and exculpation from liabilities for acts or omissions occurring at or before the Effective Time now existing in favor of any Indemnified Party as provided in any applicable Articles of Incorporation or Regulations (or comparable organizational documents), and any existing indemnification agreements set forth on Section 5.11(a) of the Company Disclosure Schedule, shall survive the Merger and shall continue in full force and effect in accordance with their terms, and shall not be ~~required to pay an annual premium for~~ amended, repealed or otherwise modified after the ~~D&O Insurance~~ Effective Time in ~~excess of (for~~ any ~~one year) 150% of~~ manner that would adversely affect the ~~annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums~~ rights thereunder of such ~~insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events~~ individuals for acts or omissions occurring ~~prior to~~ at or before the Effective Time, ~~for a cost not exceeding such amount~~it being understood that nothing in this sentence shall require any amendment to the Articles of Incorporation or Regulations of the Surviving Corporation. (eb) In For six (6) years after the ~~event that~~ Effective Time, to the fullest extent permitted under applicable Law, the Parent, the Merger Sub, and the Surviving Corporation shall indemnify, defend and hold harmless, and provide advancement of reasonable expenses to, each Indemnified Party against all Proceedings, losses, claims, damages, costs, expenses, liabilities or judgments or amounts that are paid in settlement of or in connection with any Proceeding based in whole or in part on or arising in whole or in part out of the fact that such person is or was a director, officer or employee of the Company or any Subsidiary of the ~~Surviving~~ Company, and pertaining to any matter existing or occurring, or any ~~of their respective successors~~ acts or ~~assigns~~omissions occurring, ~~(i) consolidates with~~ at or ~~merges into any other Person and shall not be~~ before the ~~continuing~~ Effective Time, whether asserted or ~~surviving company~~ claimed before, or ~~entity of such consolidation~~ at or ~~merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent~~after, the ~~Surviving Company~~ Effective Time (including matters, acts or ~~such Subsidiary~~ omissions occurring in connection with the approval of this Agreement and the consummation of the ~~Surviving Company~~transactions contemplated hereby); provided, ~~as the case may be~~however, ~~shall assume the obligations set forth~~ that nothing in this ~~Section 6.4. The provisions~~ provision will be construed to grant any person any right of ~~this Section 6.4 are intended to be~~ indemnification for any act or omission not made in good faith and in the benefit of, and shall be enforceable by, the parties and each Person entitled to indemnification, exculpation, insurance coverage or expense advancement or any other right pursuant to this Section 6.4, and his, her or its heirs and representatives. The rights best interest of the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents~~ shareholders of the Company and its Subsidiaries or ~~any~~ as provided under the applicable Articles of ~~its Subsidiaries,~~ Incorporation and Regulations in effect during the acts or events under ~~any applicable contracts or Law. Parent and~~ which the ~~Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4~~claim for indemnification has arisen.

Appears in 1 contract

Samples: Merger Agreement (Frischs Restaurants Inc)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing~~ From and after the Effective Time, Purchaser shall indemnify and hold harmless, to the fullest extent permitted by applicable law, the Company Charter or Company Bylaws as of in effect on the date of this Agreement ~~to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers~~ or ~~employees of~~ any agreements providing for indemnification by the Company or any of its ~~Subsidiaries as provided in the Organizational Documents~~ Subsidiaries, each present and former director, officer or employee of the Company and its Subsidiaries (in each case, when acting in such capacity) (collectively, the “Company Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection with any ~~such Subsidiary~~threatened or actual claim, ~~any employment agreement~~ action, suit, proceeding or ~~indemnification agreement in effect on the date hereof~~ investigation, whether civil, criminal, administrative or ~~otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms~~investigative, ~~and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and~~ whether arising before or after the Effective Time, ~~Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now~~arising in whole or in part out of, or ~~has been at any time prior to~~ pertaining to, the ~~date of this Agreement~~ fact that such person is or ~~who becomes prior to the Effective Time~~was a director, ~~a director~~ officer or ~~officer~~ employee of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against~~ person and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time, including matters, acts or omissions occurring in connection with the consideration and approval of this Agreement and the transactions contemplated by this Agreement; and Purchaser shall also advance expenses as incurred by such Company Indemnified Party to the fullest extent provided by applicable law, the Company Charter and Company Bylaws as in effect on the date of this Agreement or any agreements providing for indemnification by the Company or any of its Subsidiaries. (b) For a period of six (6) years after the Effective Time, Purchaser shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance maintained by the Company (provided, that Purchaser 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 insured) with respect to claims against the present and former officers and directors of the Company 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, however, that ~~Parent~~ Purchaser shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~300% of the current annual premium paid as of the date hereof by the Company for such insurance as (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then Purchaser shall cause to be maintained policies of insurance which, in Purchaser’s good faith determination, provide the maximum coverage available at an annual premium equal to the Premium Cap. In lieu of the ~~date~~ foregoing, the Purchaser or (with the Purchaser’s permission, which shall not be unreasonably withheld, conditioned or delayed, after taking into account the purposes of this ~~Agreement; and provided, further, that if~~ Section 6.7(b)) the ~~annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to~~ Company may obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year “tail” policy under the Company’s existing directors and officers insurance policy 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, ~~for~~ in the aggregate, does not exceed the Premium Cap. If the Purchaser or Company purchases such a ~~cost not exceeding~~ “tail policy,” Purchaser shall maintain such ~~amount~~“tail policy” in full force and effect from and after the Effective Time and continue to honor its obligations thereunder. (ec) ~~In the event that Parent, the Surviving Company or any Subsidiary~~ The obligations of the ~~Surviving Company, or any of their respective successors or assigns, (i) consolidates with or merges into any other Person~~ Purchaser and the Company under this Section 6.7 shall not be terminated or modified after the ~~continuing~~ Effective Time in a manner so as to adversely affect any Company Indemnified Party or ~~surviving company~~ any other person entitled to the benefit of this Section 6.7 without the prior written consent of the affected Company Indemnified Party or ~~entity~~ affected person. The rights of ~~such consolidation or merger or (ii) transfers all or substantially all of its properties and assets~~ each Company Indemnified Party under this Section 6.7 shall be in addition to any ~~Person~~rights such person may have under the CBCA, ~~then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company~~ any other applicable law or ~~such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4.~~ agreement. (d) The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights~~ If Purchaser or any of its successors or assigns will consolidate with or merge into any other entity and not be the ~~Indemnified Persons under~~ 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, Purchaser will cause proper provision to be made so that the successors and assigns of Purchaser will expressly assume the obligations set forth in this Section ~~6.4 are~~ 6.7. For the avoidance of doubt, to the extent required by any agreement previously entered into by the Company in ~~addition~~ connection with a merger, acquisition or other business combination, the provisions of this Section 6.7 shall apply to ~~any rights such Indemnified Persons may have under the Organizational Documents~~ directors, officers, employees and fiduciaries of predecessor entities previously acquired by the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4.

Appears in 1 contract

Samples: Merger Agreement (People's United Financial, Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, each of Parent and the Surviving ~~Company~~ Corporation shall, jointly and severally, ~~indemnify, defend~~ indemnify and hold ~~harmless~~ harmless, to the fullest extent permitted under applicable Law, each ~~Person who is now~~present and former director and officer of the Company and its Subsidiaries, and each fiduciary of a Company Benefit Plan (collectively, together with such person’s heirs, executors or ~~has been at~~ administrators, the “Indemnified Parties”) against any ~~time~~ costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement incurred in connection with any actual or threatened Action, whether civil, criminal, administrative or investigative, arising out of, related to or in connection with any action or omission occurring or alleged to have occurred whether prior to ~~the date of this Agreement~~ or ~~who becomes prior to~~ at the Effective ~~Time,~~ Time (including in connection with such Indemnified Parties’ service as a director or officer of the Company or any of its Subsidiaries or is a fiduciary of a Company Benefit Plan or ~~was serving~~ services performed by such persons at the request of or for the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent benefit of the Company or ~~any of~~ its ~~Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation~~Subsidiaries), partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective ~~Time~~ Time, including, for the avoidance of doubt, in connection with (~~“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to,~~ i) the transactions contemplated by this Agreement and (ii) actions to enforce this provision or any other indemnification, exculpation or advancement right of any Indemnified Party. Without limiting the ~~Transactions~~foregoing, ~~in each case~~Parent, for a period of six (6) years from and after the Effective Time, shall, unless otherwise prohibited by applicable Law, cause the Charter and the Bylaws to contain provisions no less favorable to the ~~fullest extent permitted under applicable Law (~~Indemnified Parties with respect to indemnification, exculpation from liabilities and rights to advancement of expenses than those set forth as of the date of this Agreement in the certificate of incorporation and bylaws of the Company, which provisions shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of any Indemnified Party. In addition, from and after the Effective Time, each of Parent and the Surviving ~~Company shall, jointly~~ Corporation shall advance costs and ~~severally, pay~~ expenses (including attorneys’ fees) as incurred by any Indemnified Party promptly (and in ~~connection therewith in~~ any event within ten (10) days) after receipt by Parent of a written request for such advance ~~of the final disposition of any such Proceeding to each Indemnified Person~~ 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 (after exhausting all available appeals) that such Person is not entitled to indemnification. Any Indemnified Party wishing to claim indemnification under this Section 5.10(a)~~. Without limiting~~ , upon learning of any claim, action or proceeding in respect of which such indemnification will be sought, shall notify the ~~foregoing~~Surviving Corporation thereof in writing; provided, in that the ~~event any~~ failure to so notify the Surviving Corporation shall not affect the indemnification obligations of the Surviving Corporation or Parent under this Section 5.10(a), except to the extent such ~~Proceeding is brought or threatened~~ failure to ~~be brought against any Indemnified Persons~~ notify materially prejudices the Surviving Corporation. (~~whether arising before or after~~ b) Prior to the Effective Time), the Company shall obtain and fully pre-pay the premium for (and, following the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain with reputable and financially sound carriers) the extension of (i) the ~~Indemnified Persons may retain~~ directors’ and officers’ liability coverage of the Company’s ~~regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person,~~ existing directors’ and ~~Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received~~officers’ insurance policies, and (ii) the ~~Surviving Company shall use its reasonable best efforts to assist~~ Company’s existing fiduciary liability insurance policies (collectively, “D&O Insurance”), in each case for a claims reporting or discovery period (whichever is greater) of six (6) years from and after the ~~defense of any such matter. With~~ Effective Time with respect to any ~~determination~~ claim arising from facts or events that existed or occurred at or prior to the Effective Time with terms, conditions, retentions, coverage limits and limits of ~~whether~~ liability that are at least as favorable as the coverage provided under the Company’s existing policies in effect on the date hereof. If the Company and the Surviving Corporation for any ~~Indemnified Person is entitled~~ reason fail to ~~indemnification by Parent or Surviving Company under this Section 6.4,~~ obtain such ~~Indemnified Person shall have~~ “tail” insurance policies as of the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving CompanyEffective Time, the ~~Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement~~Surviving Corporation shall, ~~Parent shall not (~~and Parent shall cause the Surviving ~~Company not~~ Corporation to~~) settle or compromise or consent~~ , continue to ~~the entry of any judgment or otherwise seek termination with respect to any Proceeding~~ maintain in effect for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years ~~following~~ from and after the Effective ~~Time, Parent and~~ Time the ~~Surviving Company shall not amend, repeal or otherwise modify any provision~~ D&O Insurance in ~~the Organizational Documents~~ place as of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof ~~or otherwise~~with terms, ~~regardless~~ conditions, retentions, coverage limits and limits of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope~~ that are at least as favorable as the coverage provided in the Company’s existing policies ~~with respect to matters~~as of the date hereof, ~~acts~~ or ~~omissions existing or occurring at or prior to~~ the ~~Effective Time; provided~~Surviving Corporation shall, ~~however, that~~ and Parent shall ~~not~~ cause the Surviving Corporation to, purchase comparable insurance as the D&O Insurance for such six-year period with terms, conditions, retentions and limits of liability that are at least as favorable as the coverage provided under the Company’s existing policies as of the date hereof. Notwithstanding the foregoing, (x) in no event shall the Company or the Surviving Corporation be required to ~~pay~~ expend for any such policies pursuant to this Section 5.10(b) an annual premium ~~for the D&O Insurance~~ amount in excess of ~~(for any one year) 150~~300% of the aggregate of the annual ~~premium~~ premiums currently paid by the Company for such ~~insurance as of the date of this Agreement;~~ insurance, and ~~provided, further, that~~ (y) if the annual premiums of such insurance coverage exceed such maximum amount, ~~Parent~~ the Company or the Surviving Corporation shall ~~be obligated to~~ obtain a policy with the greatest coverage ~~available, with respect to facts, acts, events or omissions occurring prior to the Effective Time,~~ available for ~~a cost not exceeding~~ such maximum amount. (ec) ~~In the event that Parent,~~ If Parent or the Surviving ~~Company or any Subsidiary of the Surviving Company,~~ Corporation or any of their ~~respective~~ successors or ~~assigns,~~ assigns shall (i) ~~consolidates~~ consolidate with or ~~merges~~ merge into any other ~~Person~~ corporation or entity and shall not be the continuing or surviving ~~company~~ corporation or entity of such consolidation or merger or (ii) ~~transfers~~ transfer all or substantially all of its properties and assets to any ~~Person~~individual, corporation or other entity, then, in each such case, proper provisions shall be made so that ~~the successors and assigns of Parent, the Surviving Company~~ such surviving or ~~such Subsidiary of the Surviving Company~~acquiring Person(s), as the case may be, shall assume all of the obligations set forth in this Section ~~6.4.~~ 5.10. (d) The provisions of this Section ~~6.4~~ 5.10 are intended to be for the benefit of, and shall be enforceable by, each of the parties and each Person entitled to indemnification, exculpation, insurance coverage or expense advancement or any other right pursuant to this Section 6.4, and his, her or its heirs and representatives. Indemnified Parties. (e) The rights of the Indemnified ~~Persons~~ Parties under this Section ~~6.4 are~~ 5.10 shall be in addition to any rights such Indemnified ~~Persons~~ Parties may have under the ~~Organizational Documents~~ certificate of incorporation or bylaws or comparable governing documents of the Company or any of its Subsidiaries, or under any applicable ~~contracts~~ Contracts or ~~Law~~Laws or otherwise. ~~Parent~~ All rights to indemnification, exculpation 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 (whether asserted or claimed prior to, at, or after the Effective Time) as provided in the certificate of incorporation or bylaws or comparable governing documents of the Company or any of its Subsidiaries or any Contract or otherwise between such Indemnified Party and the ~~Surviving~~ Company or any of its Subsidiaries shall ~~pay all expenses~~survive the Merger and continue in full force and effect (and shall be so maintained) and shall not be amended, ~~including attorneys’ fees~~repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to insurance claims under any policy that ~~may be incurred by~~ is or has been in existence with respect to the Company or any of its Subsidiaries or any Indemnified ~~Person in enforcing~~ Party, it being understood and agreed that the ~~indemnity and other obligations~~ indemnification provided for in this Section ~~6.4~~5.10 is not prior to, or in substitution for, any such claims under any such policies.

Appears in 1 contract

Samples: Merger Agreement (Control4 Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, ~~Parent and the Surviving Company~~ BOS shall, ~~jointly and severally~~to the fullest extent permitted by Applicable Legal Requirements, indemnify, defend and hold ~~harmless~~ harmless, and provide advancement of expenses to, each ~~Person~~ person who is now, or has been at any time prior to the date ~~of this Agreement~~ hereof or who becomes prior to the Effective Time, a an officer, director or ~~officer~~ employee of ~~the Company~~ SCVE or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified ~~Persons~~Parties”) against ~~and from~~ all losses, claims, damages, costs, ~~fines~~expenses, ~~penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities,~~ liabilities or judgments ~~and~~ or amounts that are paid in settlement ~~of,~~ of or ~~incurred~~ in connection with any ~~threatened~~ claim, action, suit, proceeding or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities investigation based in whole or in part ~~on,~~ on or arising in whole or in part out ofof the fact that such person is or was a director, officer or employee of SCVE or any Subsidiary of SCVE, and pertaining to any matter existing or occurring, or ~~pertaining to, this Agreement~~ any acts or ~~the Transactions, in each case,~~ omissions occurring at or prior to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), whether asserted or claimed prior to, or at or after, the Effective Time (i) including matters, acts or omissions occurring in connection with the ~~Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent~~ approval of this Agreement and the ~~Surviving Company shall pay all reasonable fees and expenses~~ consummation of ~~such counsel for~~ the transactions contemplated hereby) (“Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayedLiabilities”), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six ~~(6)~~ years ~~following~~ after the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and BOS shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement maintained in effect on the ~~date hereof or otherwise, regardless~~ current policies of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability~~ insurance ~~and employment practices liability insurance in an amount and scope~~ maintained by SCVE (provided that BOS may substitute therefor policies with a substantially comparable insurer of at least ~~as favorable as~~ the ~~Company’s existing policies~~ same coverage and amounts containing terms and conditions which are no less advantageous to the insured) with respect to ~~matters, acts~~ claims arising from facts or ~~omissions existing or occurring~~ events which occurred at or ~~prior to~~ before the Effective Time; provided, however, that ~~Parent~~ BOS shall not be ~~required~~ obligated to ~~pay an annual~~ make premium payments for such insurance to the ~~D&O Insurance in excess of (for any one year) 150~~extent such premiums exceed 250% of the annual premium paid ~~by the Company for such insurance~~ as of the date ~~of this Agreement; and provided, further, that if the annual premiums of~~ hereof by SCVE for such insurance (“SCVE’s Current Premium”), plus any refund received on the current directors’ and officers’ liability insurance policy of SCVE, and if such premiums for such insurance would at any time exceed 250% of SCVE’s Current Premium, then BOS shall cause to be maintained policies of insurance which, in BOS’ good faith determination, provide the maximum coverage ~~exceed such amount~~available at a premium equal to 250% of SCVE’s Current Premium. In lieu of the foregoing, ~~Parent~~ SCVE, in consultation with, but only upon the consent of BOS, which consent shall ~~be obligated to~~ not unreasonably withheld, conditioned or delayed may obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ on or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year “tail” policy or “extended discovery period” under SCVE’s existing directors and officers insurance policy 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 does not exceed 250% of SCVE’s Current Premium, ~~for a cost not exceeding such amount~~plus any refund received on the current directors’ and officers’ liability insurance policy of SCVE. (ec) In BOS shall indemnify an Indemnified Party for all expenses, including reasonable fees and expenses of counsel, that an Indemnified Party may incur in successfully enforcing the ~~event that Parent, the Surviving Company or any Subsidiary of the Surviving Company,~~ indemnity and other obligations provided for in this Section 5.7. (d) If BOS or any of ~~their respective~~ its successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving ~~company~~ 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, proper ~~provisions~~ provision shall be made so that the successors and assigns of ~~Parent,~~ the Surviving ~~Company or such Subsidiary of the Surviving Company~~Bank, as the case may be, shall assume the obligations set forth in this Section ~~6.4.~~ 5.7. (e) The provisions of this Section ~~6.4~~ 5.7 (i) are intended to be for the benefit of, and shall be enforceable by, ~~the parties and~~ each ~~Person entitled to indemnification~~Indemnified Party, ~~exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and ~~representatives. The rights of the Indemnified Persons under this Section 6.4~~ representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any ~~rights~~ such ~~Indemnified Persons~~ Person may have ~~under the Organizational Documents of the Company~~ by contract or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4otherwise.

Appears in 1 contract

Samples: Consolidation Agreement (Sierra Bancorp)

Indemnification; Directors’ and Officers’ Insurance. (a) From and after the Effective Time, Parent ~~agrees that all rights existing~~ shall cause the Surviving Company to indemnify and hold harmless, as and to the fullest extent provided in the certificate of incorporation and bylaws of the Company as in effect on the date of this Agreement ~~to indemnification~~and permitted by applicable Law, ~~advancement of expenses~~ all past and ~~exculpation from Indemnified Liabilities in favor of current and/or former directors,~~ present directors and officers ~~or employees~~ of the Company or any of its Subsidiaries ~~as provided~~ (collectively, the “Indemnified Parties”) against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys’ fees and expenses in ~~the Organizational Documents~~ advance of the ~~Company~~ final disposition of any claim, suit, proceeding or investigation to each Indemnified Party upon receipt of an undertaking from such Indemnified Party to repay such advanced expenses if it is determined by a final and non-appealable judgment of a court of competent jurisdiction that such Indemnified Party was not entitled to indemnification hereunder), judgments, fines and amounts paid in settlement in connection with any ~~such Subsidiary~~actual or threatened claim, ~~any employment agreement~~ action, suit, proceeding or ~~indemnification agreement~~ investigation, whether civil, criminal or administrative (in ~~effect on the date hereof~~ each case whether asserted or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and claimed before or after the Effective Time~~, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now,~~ ) arising out of acts or ~~has been~~ omissions occurring at ~~any time prior to the date of this Agreement~~ or ~~who becomes~~ prior to the Effective ~~Time,~~ Time in connection with such Indemnified Person serving as a director or officer of the Company or any of its Subsidiaries ~~or is or was~~ (including in connection with an Indemnified Person serving at the request of the Company or any of its Subsidiaries as a ~~director~~ director, officer, employee, trustee or ~~officer~~ partner of another corporation, partnership, ~~limited liability company~~trust, joint venture, ~~Employee Benefit Plan, trust~~ employee benefit plan or other ~~enterprise (the “Indemnified Persons”) against~~ entity and ~~from all losses, claims, damages, costs, fines, penalties, expenses (~~including ~~attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of,~~ acts or ~~incurred~~ omissions occurring in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement ~~or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent~~ and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Lawtransactions contemplated hereby). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years ~~following~~ after the Effective Time, Parent ~~and the Surviving Company~~ shall ~~not amend, repeal~~ maintain or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company ~~and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between~~ to maintain for the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents benefit of the ~~Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such~~ Indemnified ~~Person is ultimately determined to be entitled to indemnification hereunder or thereunder.~~ Persons a directors’ and officers’ liability insurance policy (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from the ~~Effective Time from~~ Company’s current insurance carrier or an insurance carrier with the same or better credit ~~rating~~ rating, as of the Closing Date, as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, carrier) that provides coverage for acts or omissions existing or occurring at or prior to the Effective Time; provided, however, that Parent shall not be required to pay an annual premium for the D&O Insurance in excess of (for any one year) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time (the “D&O Insurance”) with terms and conditions which are, in the aggregate, not less advantageous to such Indemnified Persons than the terms and conditions of the existing directors’ and officers’ liability insurance policy of the Company; provided that, at Parent’s option, in lieu of the foregoing insurance coverage, Parent or, with Parent’s consent, the Company may at or prior to the Effective Time substitute therefor a single premium tail coverage with respect to the D&O Insurance that provides coverage for period of six (6) years after the Effective Time, with terms and conditions which are, in the aggregate, not less advantageous to such Indemnified Persons than the terms and conditions of the existing directors’ and officers’ liability insurance policy of the Company. Notwithstanding the foregoing, in no event will Parent be required to expend, in the aggregate, an amount in excess of 300% of the annual premiums currently paid by the Company for ~~a cost not exceeding such amount~~the existing directors’ and officers’ liability insurance policy of the Company (the “Insurance Amount”), and if Parent is unable to maintain or obtain the insurance called for by this Section 5.7(b) for an amount equal to or less than the Insurance Amount, Parent shall obtain as much comparable insurance as may be available for the Insurance Amount. (ec) ~~In the event that~~ If Parent, the Surviving ~~Company or any Subsidiary of the Surviving Company,~~ Corporation or any of ~~their respective~~ its successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving company or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any ~~Person~~person, then, and in each such case, to the extent required, proper ~~provisions~~ provision shall be made so that the successors and assigns of ~~Parent,~~ Parent or the Surviving ~~Company or such Subsidiary of the Surviving Company, as the case may be,~~ Corporation shall assume the obligations set forth in this Section ~~6.4.~~ 5.7. (d) The rights of each Indemnified Person under this Section 5.7 shall be in addition to any rights such person may have under the certificate of incorporation or bylaws of the Company or any of its Subsidiaries, under Delaware law or any other applicable Law or pursuant to any employment agreement or indemnification agreement in effect on the date hereof. (e) For a period of six (6) years from the Effective Time, Parent shall not permit any amendments to the certificate of incorporation, bylaws or other organizational documents of the Company or its Subsidiaries that would adversely affect any right of a person who was or is a director or officer of the Company or its Subsidiaries at or prior to the Effective Time with respect to elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses under the Company’s and its Subsidiaries’ certificate of incorporation, bylaws or other organizational documents in effect as of the date hereof. (f) The provisions of this Section ~~6.4~~ 5.7 are intended to be be, following the Effective Time, for the benefit of, and shall be enforceable by, ~~the parties~~ each Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and personal representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4.

Appears in 1 contract

Samples: Merger Agreement (Moneygram International Inc)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing~~ From and after the Effective Time, Purchaser shall indemnify and hold harmless, to the fullest extent permitted by applicable law, the Company Articles or Company Bylaws as of in effect on the date of this Agreement ~~to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers~~ or ~~employees of~~ any agreements providing for indemnification by the Company or any of its ~~Subsidiaries as provided in the Organizational Documents~~ Subsidiaries, each present and former director, officer or employee of the Company and its Subsidiaries (in each case, when acting in such capacity) (collectively, the "Company Indemnified Parties") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, damages or liabilities incurred in connection with any ~~such Subsidiary~~threatened or actual claim, ~~any employment agreement~~ action, suit, proceeding or ~~indemnification agreement in effect on the date hereof~~ investigation, whether civil, criminal, administrative or ~~otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms~~investigative, ~~and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and~~ whether arising before or after the Effective Time, ~~Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now~~arising in whole or in part out of, or ~~has been at any time prior to~~ pertaining to, the ~~date of this Agreement~~ fact that such person is or ~~who becomes prior to the Effective Time~~was a director, ~~a director~~ officer or ~~officer~~ employee of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against~~ person and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time, including matters, acts or omissions occurring in connection with the consideration and approval of this Agreement and the transactions contemplated by this Agreement; and Purchaser shall also advance expenses as incurred by such Company Indemnified Party to the fullest extent permitted by applicable law, the Company Articles or Company Bylaws as in effect on the date of this Agreement or any agreements providing for indemnification by the Company or any of its Subsidiaries. (b) For a period of six (6) years after the Effective Time, Purchaser shall cause to be maintained in effect the current policies of directors' and officers' liability insurance maintained by the Company (provided, that Purchaser 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 insured) with respect to claims against the present and former officers and directors of the Company 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, ~~however,~~ that ~~Parent~~ Purchaser shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~300% of the current annual premium paid as of the date hereof by the Company for such insurance as (the "Premium Cap"), and if such premiums for such insurance would at any time exceed the Premium Cap, then Purchaser shall cause to be maintained policies of insurance which, in Purchaser's good faith determination, provide the maximum coverage available at an annual premium equal to the Premium Cap. In lieu of the ~~date of this Agreement; and provided~~foregoing, ~~further, that if~~ the ~~annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy~~ Purchaser or (with the ~~greatest coverage available, with respect to facts, acts, events~~ Purchaser's permission) the Company may obtain at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year "tail" policy under the Company's existing directors and officers insurance policy 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, ~~for~~ in the aggregate, does not exceed the Premium Cap. If the Purchaser or Company purchases such a ~~cost not exceeding~~ "tail policy," Purchaser shall maintain such ~~amount~~"tail policy" in full force and effect from and after the Effective Time and continue to honor its obligations thereunder. (ec) ~~In the event that Parent, the Surviving Company or any Subsidiary~~ The obligations of the ~~Surviving Company, or any of their respective successors or assigns, (i~~Purchaser and the Company under this Section 6.7(c) ~~consolidates with or merges into any other Person and~~ shall not be terminated or modified after the ~~continuing~~ Effective Time in a manner so as to adversely affect any Company Indemnified Party or ~~surviving company~~ any other person entitled to the benefit of this Section 6.7(c) without the prior written consent of the affected Company Indemnified Party or ~~entity~~ affected person. The rights of ~~such consolidation or merger or (ii) transfers all or substantially all of its properties and assets~~ each Company Indemnified Party under this Section 6.7 shall be in addition to any ~~Person~~rights such person may have under the MGCL, ~~then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company~~ any other applicable law or ~~such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4.~~ agreement. (d) The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ If Purchaser or any of its ~~Subsidiaries~~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 ~~under~~ substantially all of its assets or deposits to any ~~applicable contracts~~ other entity or ~~Law. Parent~~ engage in any similar transaction, then in each case, Purchaser will cause proper provision to be made so that the successors and assigns of Purchaser will expressly assume the ~~Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other~~ obligations ~~provided~~ set forth in this Section ~~6.4~~6.7.

Appears in 1 contract

Samples: Merger Agreement (First Connecticut Bancorp, Inc.)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing as~~ For a period of six years after the Closing Date, the Purchaser shall cause the Reorganized Company to, and the Reorganized Company shall, indemnify, defend and hold harmless, to the fullest extent permitted under applicable Law, the present and former directors and officers of the ~~date of this Agreement~~ Company and each Subsidiary (the “Indemnified Parties”) from and against all Liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative related to ~~indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers~~ the fact that such person was a director or ~~employees~~ officer of the Company or any Subsidiary, arising out of ~~its Subsidiaries as provided in~~ or pertaining to matters existing or occurring at or prior to the ~~Organizational Documents~~ Closing (including the Transactions), or taken by them at the request of the Company or any ~~such~~ Subsidiary, whether asserted or claimed prior to, at or after Closing. Each Indemnified Party will be entitled to advancement of expenses incurred in the defense of any ~~employment agreement~~ Action from the Reorganized Company within ten Business Days of receipt by the Reorganized Company from the Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by applicable Law, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. The Reorganized Company shall not settle, compromise or consent to the entry of any judgment in any proceeding or threatened Action (and in which indemnification ~~agreement~~ could be sought by such Indemnified Party), unless such settlement, compromise or consent includes an unconditional release of an Indemnified Party from all Liability arising out of such Action or such Indemnified Party otherwise consents. (b) For a period of six years following the Closing Date, the Purchaser and the Reorganized Company shall cause the Bylaws (or other similar organizational documents) of the Reorganized Company and each Subsidiary to contain provisions with respect to indemnification and exculpation that are at least as favorable as the indemnification and exculpation provisions contained in ~~effect on~~ the ~~date hereof~~ Bylaws (or other similar organizational documents) of the Reorganized Company and each Subsidiary as of the Closing, and during such six year period, such provisions shall not be amended, repealed or otherwise ~~(which~~ modified in any respect, adverse to the Indemnified Parties, except as required by Law. All rights to exculpation and indemnification for acts or omissions in favor of the Indemnified Parties occurring prior to or at the Closing as provided in the Company’s Bylaws or in any agreement listed in the Disclosure Schedule shall be assumed by ~~Parent~~ the Reorganized Company from and after the ~~Surviving Company) will~~ Closing and shall continue in full force and effect in accordance with their ~~terms, and Parent will cause~~ terms from the ~~Surviving Company to perform its respective obligations thereunder. Without limiting~~ Closing until the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a director or officer sixth anniversary of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective TimeClosing Date. (c) ~~To the extent permitted by applicable Law, Parent and the Surviving~~ The Company ~~shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request~~ may obtain as ~~provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents~~ of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, Closing “tail” insurance policies ~~(collectively, the “D&O Insurance”)~~ with a claims period of at least six years from the ~~Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier~~ Closing Date with respect to the directors’ and officers’ liability ~~insurance, fiduciary liability insurance and employment practices liability~~ insurance in an amount and scope at least as favorable as the coverage applicable to the Company’s ~~existing~~ directors and officers as of the date hereof (the “Tail Policy”). If the Company does not obtain the Tail Policy prior to the Closing, for a period of six years from the Closing Date, the Purchaser shall cause to be maintained in effect policies of at least the same coverage as the policies of directors’ and officers’ liability insurance maintained by the Company or any Subsidiary as of the date hereof (the “D&O Insurance”) for the benefit of those persons who are covered by such policies on the Closing Date with respect to ~~matters, acts or omissions existing or~~ matters occurring at or prior to the ~~Effective Time; provided~~Closing, ~~however,~~ to the extent that ~~Parent shall~~ such liability insurance can be maintained at a cost to the Company not ~~be required to pay an annual~~ greater than 300% of the last annualized premium for the ~~D&O Insurance in excess~~ current directors’ and officers’ liability insurance; provided that, if such insurance cannot be so maintained or obtained at such cost, the Purchaser shall cause the Reorganized Company to maintain or obtain as much of such insurance as can be so maintained or obtained (~~for any one year~~not to exceed six years from the Closing Date) ~~150~~at a cost equal to 300% of the ~~annual~~ last annualized premium ~~paid by the Company~~ for such ~~insurance as of~~ insurance. (d) Notwithstanding anything herein to the ~~date of this Agreement; and provided~~contrary, ~~further~~if any Action (whether arising before, ~~that if~~ at or after the ~~annual premiums of such insurance coverage exceed such amount~~Closing Date) is made against any Indemnified Party, ~~Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events~~ on or ~~omissions occurring~~ prior to the ~~Effective Time~~sixth anniversary of the Closing Date, ~~for a cost not exceeding~~ the provisions of this Section 5.03 shall continue in effect until the final disposition of such ~~amount~~Action. (e) In If the ~~event that Parent, the Surviving~~ Reorganized Company or any ~~Subsidiary~~ of ~~the Surviving Company, or any of their respective~~ its successors or ~~assigns,~~ assigns (i) merges or consolidates with or ~~merges~~ into any other Person and shall not be the continuing or surviving ~~company or entity~~ Person of such ~~consolidation or merger~~ transaction or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper ~~provisions~~ provision shall be made so that the successors and assigns of ~~Parent,~~ the ~~Surviving~~ Reorganized Company ~~or such Subsidiary~~ shall assume all of the ~~Surviving Company, as~~ obligations of the ~~case may be, shall assume the obligations~~ Reorganized Company set forth in this Section ~~6.4.~~ 5.03. (f) The ~~provisions of~~ obligations under this Section ~~6.4~~ 5.03 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 Insurance or the Tail Policy (and their heirs and representatives)) without the prior written consent of such affected Indemnified Party or other person who is a beneficiary under the D&O Insurance or the Tail Policy (and their heirs and representatives). Each of the Indemnified Parties or other persons who are beneficiaries under the D&O Insurance or the Tail Policy (and their heirs and representatives) are intended to be ~~for the benefit of, and shall be enforceable by, the parties and each Person entitled to indemnification, exculpation, insurance coverage or expense advancement or any other right pursuant to~~ third party beneficiaries of this Section ~~6.4~~5.03, ~~and his, her or its heirs and representatives~~with full rights of enforcement as if a party thereto. The rights of the Indemnified ~~Persons~~ Parties (and other persons who are beneficiaries under the D&O Insurance or the Tail Policy (and their heirs and representatives)) under this Section ~~6.4 are~~ 5.03 shall be in addition to to, and not in substitution for, any other rights that such ~~Indemnified Persons~~ persons may have under the ~~Organizational Documents~~ certificate of incorporation, by-laws or other organizational documents, any and all indemnification agreements of or entered into by the Company or any ~~of its Subsidiaries~~Subsidiary, or ~~under any~~ applicable ~~contracts~~ Law (whether at law or ~~Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person~~ in ~~enforcing the indemnity and other obligations provided in this Section 6.4~~equity).

Appears in 1 contract

Samples: Stock Purchase Agreement (Pilgrims Pride Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that~~ Parent, Merger Sub and the Company agree that, to the fullest extent permitted by applicable Law, all rights to indemnification, advancement of expenses and exculpation, and all limitations with respect thereto, now existing in favor of each current (as of the Effective Time) and former officer or director of the Company or any Company Subsidiary in their capacity as such and not as stockholders or optionholders of the Company or any Company Subsidiary and each individual who served at the request of the Company or any of the Company Subsidiaries as an officer, director, employee, trustee or fiduciary of another corporation, partnership, joint venture, trust, or other enterprise (each an “Indemnified Person”) as provided in, as applicable, the Constituent Documents of the Company or any Company Subsidiary, any resolution of the stockholders or Board of Directors of the Company or any Company Subsidiary in effect as of the date hereof (complete and correct copies of which, specifically identified for Parent as resolution(s) of the stockholders or Board of Directors of the Company providing for such indemnification, have previously been made available to Parent), listed in Section 5.3 of the Company Disclosure Letter or any contract providing for indemnification, in effect as of the date hereof and listed in Section 5.3 of the Company Disclosure Letter (complete and correct copies of which have previously been provided to Parent), 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; provided, however, that nothing in this ~~Agreement~~ Section 5.3 shall impair any rights or obligations of any Person, including pursuant to the respective Constituent Documents of Parent, the Company, the Surviving Corporation or their respective Subsidiaries, under the DGCL or otherwise. The Constituent Documents of the Surviving Corporation and each Company Subsidiary shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation ~~from Indemnified Liabilities in favor~~ of ~~current and/or former directors,~~ individuals who are or were directors and officers ~~or employees~~ of the Company or any Company Subsidiary (or are or were serving, at the request of ~~its Subsidiaries~~ the Company, as ~~provided~~ an officer, director, employee, trustee or fiduciary of another Person) than are set forth in the ~~Organizational~~ Constituent Documents of such Person as of the ~~Company~~ date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such ~~Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise~~ individuals. (~~which shall be assumed by Parent and the Surviving Company~~b) ~~will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder.~~ Without limiting the ~~foregoing~~generality of Section 5.3(a), from and after the Effective Time, ~~Parent and~~ the Surviving ~~Company~~ Corporation shall, ~~jointly~~ and ~~severally~~Parent shall cause the Surviving Corporation to, to the fullest extent permitted by applicable Law, indemnify, defend and hold harmless each Indemnified Person ~~who is now~~against all costs and expenses (including reasonable attorneys’ fees and expenses of legal counsel selected by the Indemnified Person with the consent of Parent, which consent will not be unreasonably withheld), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or ~~has been at any time prior to the date of this Agreement~~ threatened claim, action, suit, proceeding or ~~who becomes prior to~~ investigation (whether asserted or claimed before or after the Effective Time), whether civil, criminal, administrative or investigative, based on the fact that such Indemnified Person is or was a director or officer of the Company or any of ~~its~~ the Company Subsidiaries or is or was serving at the request of the Company or any of ~~its~~ the Company Subsidiaries as a ~~director~~ director, officer, employee, trustee or ~~officer~~ fiduciary of another corporation, partnership, ~~limited liability company,~~ joint venture, ~~Employee Benefit Plan~~trust, ~~trust or~~ other enterprise ~~(the “Indemnified Persons”) against~~ and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, arising out of ~~the fact that such Person is~~ or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any ~~act~~ action or omission occurring ~~or existing prior to,~~ at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before ~~or after~~ the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses including in respect of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, ~~Parent shall not~~ the Merger and the other transactions contemplated hereby. (c) The Surviving Corporation shall, and Parent shall cause the Surviving ~~Company not~~ Corporation to~~) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding~~ , obtain and maintain in effect, for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from the Effective ~~Time from an insurance carrier with~~ Time, at no cost to the ~~same or better credit rating as the Company’s current insurance carrier with respect to~~ Indemnified Persons, directors’ and officers’ liability ~~insurance, fiduciary liability~~ insurance ~~and employment practices liability insurance~~ policies in ~~an amount and scope at least as favorable as the Company’s existing policies with~~ respect ~~to matters,~~ of acts or omissions ~~existing or~~ occurring at or prior to the Effective Time~~; provided~~, ~~however~~including the transactions contemplated hereby, ~~that Parent shall not be required to pay an annual premium for the D&O Insurance in excess of (for any one year) 150% of the annual premium paid~~ covering Indemnified Persons who are currently covered by the ~~Company for such~~ Company’s existing officers’ and directors’ or fiduciary liability insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior policies on terms no less advantageous to the ~~Effective Time, for a cost not exceeding~~ Indemnified Persons than is provided by such ~~amount~~existing insurance policies. (ed) In the event ~~that Parent,~~ the Surviving ~~Company or any Subsidiary of the Surviving Company,~~ Corporation or any of ~~their respective~~ its successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving ~~company~~ corporation or entity of such consolidation or merger or (ii) transfers or conveys all or ~~substantially all~~ any substantial portion of its properties and assets to any Person, then, and in each such case, proper ~~provisions~~ provision shall be made so that the successors and assigns of ~~Parent,~~ the Surviving ~~Company~~ Corporation (or ~~such Subsidiary~~ their respective successors or assigns) jointly and severally assume the obligations of the Surviving ~~Company, as the case may be, shall assume the obligations set forth~~ Corporation (or their respective successors or assigns) contained in this Section ~~6.4~~5.3. The provisions of this Section ~~6.4~~ 5.3 shall survive the consummation of the Merger and expressly are intended to ~~be for the~~ benefit ~~of, and shall be enforceable by, the parties and~~ each ~~Person entitled to indemnification, exculpation, insurance coverage or expense advancement or any other right pursuant to this Section 6.4, and his, her or its heirs and representatives. The rights~~ of the Indemnified Persons and may be enforced by them. Notwithstanding anything to the contrary, it is agreed that the rights of an Indemnified Person under this Section ~~6.4 are~~ 5.3 shall be in addition ~~to any~~ to, and not in limitation of, other rights such Indemnified ~~Persons~~ Person may have under the ~~Organizational Documents of the Company~~ Company’s or any ~~of its Subsidiaries~~Company Subsidiary’s Constituent Documents or other indemnification agreements or the DGCL and nothing in this Section 5.3 shall have the effect of, or be construed as having the effect of, reducing the benefits to the Indemnified Persons under the Company’s or any ~~applicable contracts~~ Company Subsidiary’s Constituent Documents or ~~Law~~other indemnification agreements or the DGCL with respect to matters occurring prior to the Effective Time. ~~Parent and~~ Notwithstanding anything herein to the ~~Surviving Company shall pay all expenses~~contrary, ~~including attorneys’ fees~~if any claim, ~~that may be incurred by~~ action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Person ~~in enforcing~~ on or prior to the ~~indemnity and other obligations provided in~~ sixth anniversary of the Effective Time, the provisions of this Section ~~6.4~~5.3 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.

Appears in 1 contract

Samples: Merger Agreement (Seitel Inc)

Appears in 1 contract

Samples: Merger Agreement (Comverse Technology Inc/Ny/)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which Buyer shall ~~be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will~~ cause the Surviving ~~Company~~ Corporation to ~~perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend~~ indemnify and hold harmless each ~~Person~~ person who is now, or has been at any time prior to the date ~~of this Agreement~~ hereof, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (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 the fact that the Indemnified Party is or was ~~serving at the request~~ an officer or director of the Company or any of its ~~Subsidiaries as a director or officer of another corporation~~Subsidiaries, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time ~~(“Indemnified Liabilities”)~~through and including the sixth anniversary of the date on which the Effective Time occurs, ~~including all Indemnified Liabilities based in whole~~ and any claim, action, suit, proceeding or ~~in part on, or~~ investigation arising ~~in whole or in part~~ out of, interrelated with, or ~~pertaining to~~based on facts or allegations that are the same or interrelated with any that form the basis of any claim, ~~this Agreement~~ action, suit or ~~the Transactions, in each case~~proceeding asserted or claimed prior to such anniversary, to the fullest extent ~~permitted~~ provided under ~~applicable Law (and Parent and~~ the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought PBCL or ~~threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain~~ the Company’s ~~regularly engaged legal counsel~~ current Articles of Incorporation, By-laws or ~~other counsel satisfactory~~ agreements with those persons. Each Indemnified Party will be entitled, subject to ~~such Indemnified Person~~applicable law, ~~and Parent and the Surviving Company shall pay all reasonable fees and~~ to advancement of expenses ~~of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist~~ incurred in the defense of any such ~~matter. With respect to any determination~~ claim, action, suit, proceeding or investigation from each of ~~whether any Indemnified Person is entitled to indemnification by Parent or~~ the Buyer and the Surviving ~~Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected~~ Corporation within ten (10) Business Days of receipt by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company Buyer or the Surviving Corporation from the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry Party of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Persona request therefor. (b) ~~For~~ The Articles of Incorporation and By-laws of the Surviving Corporation shall contain, and Buyer shall cause the Articles of Incorporation and By-laws of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of the Company and its Subsidiaries than are presently set forth in the Articles of Incorporations and By-laws of the Company. (c) The parties acknowledge that prior to the Closing Date the Company shall purchase an excess Differential in Coverage (“DIC Policy”) directors and officers insurance policy having a ~~period~~ term of six years and shall purchase a “tail” or “run off” policy covering both the Company’s current director’s and officer’s liability insurance policy and the DIC Policy and having a six year term; provided that the aggregate cost of the DIC Policy and the “tail” or “run off” policy shall not exceed $350,000. The Surviving Corporation shall maintain, and Buyer shall cause the Surviving Corporation to maintain, at no expense to the beneficiaries, in effect for six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from the Effective Time ~~from an insurance carrier with~~ the ~~same or better credit rating as~~ current policies of the ~~Company’s current insurance carrier with respect to~~ directors’ and officers’ liability ~~insurance, fiduciary liability~~ insurance maintained by the Company (including the DIC Policy and ~~employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies~~ such “tail” or “run off” policy) with respect to ~~matters, acts or omissions~~ matters existing or occurring at or prior to the Effective ~~Time; provided~~Time (including the transactions contemplated by this Agreement). (d) The Buyer shall pay all expenses, ~~however~~including reasonable attorneys’ fees, that ~~Parent shall not~~ may be ~~required to pay an annual premium for the D&O Insurance in excess of (for any one year) 150% of the annual premium paid~~ incurred by the ~~Company for such insurance as~~ persons referred to in this Section 6.7 in connection with their enforcement of ~~the date of~~ their rights provided in this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amountSection 6.7. (e) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, 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 company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company or such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4. The provisions of this Section ~~6.4~~ 6.7 are intended to be in addition to the rights otherwise available to the current officers and directors of the Company by law, charter, statute, by-law or agreement, and shall operate for the benefit of, and shall be enforceable by, ~~the parties and~~ each ~~Person entitled to indemnification, exculpation, insurance coverage or expense advancement or any other right pursuant to this Section 6.4, and his, her or its heirs and representatives. The rights~~ of the Indemnified ~~Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under~~ Parties, their heirs and their representatives. (f) In the ~~Organizational Documents of~~ event the ~~Company~~ Surviving Corporation or any of its ~~Subsidiaries~~successors assigns consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, then proper provision shall be made so that the surviving corporation or ~~under any applicable contracts or Law. Parent and~~ entity in such transaction shall succeed to the ~~Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other~~ obligations ~~provided~~ set forth in this Section ~~6.4~~6.7.

Appears in 1 contract

Samples: Merger Agreement (Valley National Gases Inc)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving ~~Company and its Subsidiaries~~ Corporation to, ~~fulfill~~ (i) indemnify and ~~honor any indemnification~~hold harmless each present and former director and officer of the Group Companies (collectively, ~~expense advancement or exculpation agreements between~~ the “Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified ~~Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses~~Parties”), ~~such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4~~ against any and all Damages incurred or ~~under~~ suffered by any ~~Organizational Documents~~ of the Company Indemnified Parties in connection with any Liabilities or any Action, whether civil, criminal, administrative or investigative, arising out of ~~its Subsidiaries, any employment agreement~~ or ~~indemnification agreement in effect on the date hereof~~ pertaining to matters existing or ~~otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder~~ occurring at or ~~thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately~~ prior to the Effective Time, ~~“tail” insurance policies~~ whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that any Group Company would have been permitted under applicable Law and under the Organizational Documents of any Group Company, in each case as in effect on the date of this Agreement, to indemnify such Company Indemnified Parties and (~~collectively~~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 6.6(a) to the fullest extent permitted under applicable Law or, if greater, under the Organizational Documents of any Group Company; provided, however, that the Company Indemnified Party to whom expenses are advanced provides a written agreement 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 Company Indemnified Party is not entitled to indemnification under applicable Law, the ~~“D&O Insurance”~~Organizational Documents of any Group Company, and pursuant to this Section 6.6(a). (b) ~~with a claims period of at least six years from~~ From and after the Effective ~~Time from an insurance carrier with~~ Time, the ~~same or better credit rating as~~ Organizational Documents of the ~~Company’s current insurance carrier~~ Surviving Corporation and its Subsidiaries shall contain provisions no less favorable in all material respects with respect to indemnification, advancement of expenses and exculpation of the Company Indemnified Parties then are currently set forth in the Organizational Documents of any Group Company. Any indemnification agreements with the Company Indemnified Parties in existence on the date of this Agreement shall be assumed by the Surviving Corporation in the Merger, without any further action, and shall survive the Merger and continue in full force and effect in accordance with their terms. (c) For a period of six (6) years following the Effective Time, Parent shall maintain, or shall cause the Surviving Corporation for itself to maintain, in effect a directors’ and officers’ liability ~~insurance, fiduciary~~ insurance policy covering those persons who are currently covered by the directors’ and officers’ liability insurance policies of the Group Companies (copies of which have been heretofore delivered by the Company to Parent and ~~employment practices liability insurance~~ its agents and representatives) with coverage in an amount and scope at least as favorable as the Company’s existing coverage; provided, that this Section 6.6(c) shall be deemed to have been satisfied if a prepaid policy or policies (i.e., “tail coverage”) have been obtained by the Company at the Company’s expense (to be treated as an Unpaid Company Transaction Expense hereunder), which policy or policies provide such directors and officers with the coverage described in this Section 6.6(c) for an aggregate period of not less than six (6) years with respect to ~~matters~~claims arising from facts or events that occurred on or before the Closing Date, ~~acts or omissions existing or occurring~~ including with respect to the transactions contemplated by this Agreement. The premiums for such prepaid policies shall be paid in full at or prior to the Effective ~~Time; provided, however, that Parent shall not be required to pay an annual premium for the D&O Insurance in excess of (for any one year) 150% of the annual premium paid by the Company for~~ Time and such ~~insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent~~ prepaid policies shall be ~~obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring~~ non-cancelable. If such prepaid policies have been obtained prior to the Effective Time, ~~for a cost not exceeding~~ Parent shall, and shall cause the Surviving Corporation to, maintain such ~~amount~~policies in full force and effect, and continue to honor the obligations thereunder. (ed) In the event ~~that Parent,~~ Parent or the Surviving ~~Company or any Subsidiary of the Surviving Company,~~ 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 ~~company~~ 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 ~~provisions~~ provision shall be made so that ~~the successors and assigns~~ such continuing or surviving corporation or entity or transferee of ~~Parent, the Surviving Company or~~ such ~~Subsidiary of the Surviving Company~~assets, as the case may be, shall assume all of the obligations set forth in this Section ~~6.4.~~ 6.6. (e) The terms and provisions of this Section ~~6.4~~ 6.6 are intended to be in addition to the rights otherwise available to the Company Indemnified Parties by applicable Law, Organizational Documents or Contract, and shall operate for the benefit of, and shall be enforceable by, the ~~parties~~ Company Indemnified Parties and ~~each Person entitled to indemnification, exculpation, insurance coverage or expense advancement or any other right pursuant to this Section 6.4, and his, her or its~~ their respective heirs and representatives, each of whom is an intended third party beneficiary of this Section 6.6. The ~~rights of the Indemnified Persons~~ obligations under this Section ~~6.4 are~~ 6.6 shall not be terminated or modified in ~~addition~~ such a manner as to affect adversely any ~~rights~~ Company Indemnified Party without the consent of such affected Company Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4Party.

Appears in 1 contract

Samples: Merger Agreement (Brown & Brown Inc)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing~~ From and after the Effective Time, Purchaser and the Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law, the Company Articles or Company Bylaws as of in effect on the date of this Agreement ~~to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers~~ or ~~employees of~~ any agreements providing for indemnification by the Company or any of its ~~Subsidiaries as provided in the Organizational Documents~~ Subsidiaries, each present and former director, officer or employee of the Company and its Subsidiaries (in each case, when acting in such capacity) (collectively, the "Company Indemnified Parties") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, damages or liabilities incurred in connection with any ~~such Subsidiary~~threatened or actual claim, ~~any employment agreement~~ action, suit, proceeding or ~~indemnification agreement in effect on the date hereof~~ investigation, whether civil, criminal, administrative or ~~otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms~~investigative, ~~and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and~~ whether arising before or after the Effective Time, ~~Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now~~arising in whole or in part out of, or ~~has been at any time prior to~~ pertaining to, the ~~date of this Agreement~~ fact that such person is or ~~who becomes prior to the Effective Time~~was a director, ~~a director~~ officer or ~~officer~~ employee of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against~~ person and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time, including matters, acts or omissions occurring in connection with the consideration and approval of this Agreement and the transactions contemplated by this Agreement; and Purchaser and the Surviving Corporation shall also advance expenses as incurred by such Company Indemnified Party to the fullest extent permitted by applicable law, the Company Articles or Company Bylaws as in effect on the date of this Agreement or any agreements providing for indemnification by the Company or any of its Subsidiaries, provided that the Company Indemnified Party to whom expenses are advanced provides an undertaking, in a reasonable and customary form, to repay such advances if it is ultimately determined that such Company Indemnified Party is not entitled to indemnification. (b) For a period of six (6) years after the Effective Time, Purchaser and the Surviving Corporation shall cause to be maintained, at no expense to the beneficiaries, in effect the current policies of directors' and officers' liability insurance maintained by the Company (provided, that Purchaser and 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 insured) with respect to claims against the present and former officers and directors of the Company 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, ~~however,~~ that ~~Parent~~ Purchaser and the Surviving Corporation shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~300% of the current annual premium paid as of the date hereof by the Company for such insurance as (the "Premium Cap"), and if such premiums for such insurance would at any time exceed the Premium Cap, then Purchaser and the Surviving Corporation shall cause to be maintained policies of insurance which, in Purchaser's and 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 ~~date of this Agreement; and provided~~foregoing, ~~further, that if~~ the ~~annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to~~ Company may obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year "tail" policy under the Company's existing directors and officers insurance policy 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, ~~for~~ on an annual basis, does not exceed the Premium Cap. If the Company purchases such a ~~cost not exceeding~~ "tail policy," Purchaser and the Surviving Corporation shall maintain such ~~amount~~"tail policy" in full force and effect and continue to honor its obligations thereunder. (ec) In The obligations of the ~~event that Parent~~Purchaser, the Surviving Corporation and the Company ~~or any Subsidiary of the Surviving Company, or any of their respective successors or assigns, (i~~under this Section 6.7(c) ~~consolidates with or merges into any other Person and~~ shall not be terminated or modified after the ~~continuing~~ Effective Time in a manner so as to adversely affect any Company Indemnified Party or ~~surviving company~~ any other person entitled to the benefit of this Section 6.7(c) without the prior written consent of the affected Company Indemnified Party or ~~entity~~ affected person. The rights of ~~such consolidation or merger or (ii) transfers all or substantially all of its properties and assets~~ each Company Indemnified Party under this Section 6.7 shall be in addition to any ~~Person~~rights such person may have under the CBCA, ~~then, in each such case, proper provisions shall be made so that the successors and assigns of Parent, the Surviving Company~~ any other applicable law or ~~such Subsidiary of the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4.~~ agreement. (d) The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of~~ If Purchaser, the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ Surviving Corporation or any of their respective 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 ~~Subsidiaries~~assets or deposits to any other entity or engage in any similar transaction, then in each case, Purchaser or ~~under any applicable contracts or Law. Parent and~~ the Surviving ~~Company shall pay all expenses, including attorneys’ fees,~~ Corporation will cause proper provision to be made so that ~~may be incurred by any Indemnified Person in enforcing~~ the ~~indemnity~~ successors and ~~other~~ assigns of Purchaser or the Surviving Corporation will expressly assume the obligations ~~provided~~ set forth in this Section ~~6.4~~6.7.

Appears in 1 contract

Samples: Merger Agreement (Cobiz Financial Inc)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, Parent shall, and shall cause the Surviving ~~Company shall~~Corporation to, ~~jointly and severally~~to the fullest extent permitted by applicable Law, indemnify, defend and hold ~~harmless~~ harmless, and provide advancement of expenses to, each ~~Person~~ person who is now, or has been at any time prior to the date ~~of this Agreement~~ hereof or who becomes prior to the Effective Time, a ~~director~~ director, officer employee or ~~officer~~ agent of the Company or any of its Subsidiaries or who is or was serving at the request of the Company or any of its Subsidiaries as a ~~director~~ director, officer, employee or ~~officer~~ agent of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise~~ Person (the “"Indemnified ~~Persons”~~Parties") against ~~and from~~ all losses, claims, damages, costs, ~~fines~~expenses, ~~penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities,~~ liabilities or judgments ~~and~~ or amounts that are paid in settlement ~~of,~~ of or ~~incurred~~ in connection with any ~~threatened~~ claim, action, suit, proceeding or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities investigation based in whole or in part ~~on,~~ on or arising in whole or in part out ofof the fact that such person is or was an Indemnified Party, and pertaining to any matter existing or occurring, or ~~pertaining~~ any acts or omissions occurring, at or prior to the Effective Time, whether asserted or claimed prior to, or at or after, the Effective Time (including matters, acts or omissions occurring in connection with the approval of this Agreement or and the ~~Transactions, in each case,~~ consummation of the transactions contemplated hereby) ("Indemnified Liabilities") to the ~~fullest~~ same extent such persons are indemnified or have the right to advancement of expenses as of the date of 49 this Agreement by the Company pursuant to the Company's Certificate of Incorporation, Bylaws and those indemnification agreements with directors, officers and employees of the Company and its Subsidiaries that are listed on Section 6.9(a) of the Company Disclosure Schedule. To the extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under by applicable Law~~). Without limiting the foregoing~~, ~~in the event any such Proceeding is brought or threatened~~ Parent's and Surviving Corporation's obligations under this Section 6.9(a) shall be limited to ~~be brought against any Indemnified Persons (whether arising before or~~ a period of six years from and after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six ~~(6)~~ years ~~following~~ after the Effective Time, ~~Parent and~~ the Surviving Corporation shall cause to be maintained in effect the current policies of directors' and officers' liability insurance maintained by the Company ~~shall not amend, repeal or otherwise modify any provision in the Organizational Documents of~~ (provided that the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance Corporation may substitute therefor policies ~~(collectively, the “D&O Insurance”)~~ with a ~~claims period~~ substantially comparable insurer of at least ~~six years from the Effective Time from an insurance carrier with~~ the same ~~or better credit rating as~~ coverage and amounts containing terms and conditions which are no less advantageous to the ~~Company’s current insurance carrier~~ insured) with respect to directors’ and officers’ liability insurance, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts claims arising from facts or ~~omissions existing or occurring~~ events which occurred at or ~~prior to~~ before the Effective Time; provided, however, that ~~Parent~~ the Surviving Corporation shall not be ~~required~~ obligated to ~~pay an~~ make annual premium payments for such insurance to the ~~D&O Insurance in excess of (for any one year) 150~~extent such premiums exceed 300% of the ~~annual premium~~ premiums paid as of the date hereof by the Company for such insurance as (the "Company's Current Premium"), and if such premiums for such insurance would at any time exceed 300% of the ~~date~~ Company's Current Premium, then the Surviving Corporation shall cause to be maintained policies of ~~this Agreement; and provided~~insurance which, ~~further~~in the Surviving Corporation's good faith determination, ~~that if~~ provide the maximum coverage available at an annual ~~premiums~~ premium equal to 300% of ~~such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with~~ the ~~greatest coverage available, with respect to facts, acts, events or omissions occurring prior to~~ Company's Current Premium. (c) Until six years from the Effective Time, unless otherwise required by applicable Law, the certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions no less favorable with respect to the elimination of liability of directors and the indemnification of Indemnified Parties (including as to advancement of expenses) than those set forth in Article X of the Certificate of Incorporation and Article V of the Bylaws, as in effect on the date hereof. (d) The Surviving Corporation shall pay (as incurred) all expenses, including reasonable fees and expenses of counsel, that an Indemnified Person may incur in the successful enforcement of the indemnity and other obligations provided for ~~a cost not exceeding such amount~~in this Section 6.9. (e) ~~In the event that Parent,~~ If the Surviving ~~Company or any Subsidiary of the Surviving Company,~~ Corporation or any of ~~their respective~~ its successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving ~~company~~ 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 ~~provisions~~ provision shall be made so that the successors and assigns of ~~Parent,~~ the Surviving ~~Company or such Subsidiary of the Surviving Company~~Corporation, as the case may be, shall assume the obligations set forth in this Section ~~6.4.~~ 6.9. (f) The provisions of this Section ~~6.4~~ 6.9 are intended to be for the benefit of, and shall be enforceable by, ~~the parties and~~ each ~~Person entitled to indemnification~~Indemnified Party, ~~exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and ~~representatives. The rights of the Indemnified Persons under this Section 6.4~~ representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any ~~rights~~ such ~~Indemnified Persons~~ person may have ~~under the Organizational Documents of the Company~~ by contract or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4otherwise.

Appears in 1 contract

Samples: Merger Agreement (Metris Companies Inc)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, ~~Parent and~~ the Surviving ~~Company~~ Corporation shall, ~~jointly and severally~~to the fullest extent permitted by applicable law, indemnify, defend and hold ~~harmless~~ harmless, and provide advancement of expenses to, each ~~Person~~ person who is now, or has been at any time prior to the date ~~of this Agreement~~ hereof or who becomes prior to the Effective Time, a an officer, director or ~~officer~~ employee of ~~the Company~~ XM or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “XM Indemnified ~~Persons~~Parties”) against ~~and from~~ all losses, claims, damages, costs, ~~fines~~expenses, ~~penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities,~~ liabilities or judgments ~~and~~ or amounts that are paid in settlement ~~of,~~ of or ~~incurred~~ in connection with any ~~threatened~~ claim, action, suit, proceeding or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities investigation based in whole or in part ~~on,~~ on or arising in whole or in part out ofof the fact that such person is or was a director, officer or employee of XM or any Subsidiary of XM, and pertaining to any matter existing or occurring, or ~~pertaining to~~any acts or omissions occurring, ~~this Agreement~~ at or ~~the Transactions, in each case,~~ prior to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), whether asserted or claimed prior to, or at or after, the Effective Time (i) including matters, acts or omissions occurring in connection with the ~~Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent~~ approval of this Agreement and the ~~Surviving Company shall pay all reasonable fees and expenses~~ consummation of the transactions contemplated hereby) to the same extent such ~~counsel for the Indemnified Persons as promptly as statements therefor~~ persons are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent indemnified or ~~Surviving Company under this Section 6.4, such Indemnified Person shall~~ have the right to ~~require that such determination be made~~ advancement of expenses as of the date of this Agreement by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person XM pursuant to ~~this Agreement~~XM’s Certificate of Incorporation, ~~unless such settlement~~By-laws and indemnification agreements, ~~compromise~~if any, ~~consent or termination includes an unconditional release~~ in existence on the date hereof with any directors, officers and employees of ~~all Indemnified Persons from all liability arising out of such Proceeding~~ XM and ~~does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person~~its Subsidiaries. (b) For a period of six ~~(6)~~ years ~~following~~ after the Effective Time, ~~Parent and~~ the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and Corporation shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement maintained in effect on the ~~date hereof or otherwise, regardless~~ current policies of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability~~ insurance ~~and employment practices liability insurance in an amount and scope~~ maintained by XM (provided that the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least ~~as favorable as~~ the ~~Company’s existing policies~~ same coverage and amounts containing terms and conditions which are no less advantageous to the insured) with respect to ~~matters, acts~~ claims arising from facts or ~~omissions existing or occurring~~ events which occurred at or ~~prior to~~ before the Effective Time; provided, however, that ~~Parent~~ the Surviving Corporation shall not be ~~required~~ obligated to ~~pay an~~ make annual premium payments for such insurance to the ~~D&O Insurance in excess of (for any one year) 150~~extent such premiums exceed 300% of the ~~annual premium~~ premiums paid ~~by the Company for such insurance~~ as of the date ~~of this Agreement; and provided, further, that if the annual premiums of~~ hereof by XM for such insurance (“XM’s Current Premium”), and if such premiums for such insurance would at any time exceed 300% of XM’s Current Premium, 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 ~~exceed such amount, Parent shall be obligated~~ available at an annual premium equal to ~~obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amount~~300% of XM’s Current Premium. (ec) In The Surviving Corporation shall pay (as incurred) all expenses, including reasonable fees and expenses of counsel, which an indemnified person may incur in enforcing the ~~event that Parent,~~ indemnity and other obligations provided for in this Section 5.11. (d) If the Surviving ~~Company or any Subsidiary of the Surviving Company,~~ Corporation or any of ~~their respective~~ its successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving ~~company~~ 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~~person, then, and in each such case, to the extent necessary, proper ~~provisions~~ provision shall be made so that the successors and assigns of ~~Parent,~~ the Surviving ~~Company or such Subsidiary of the Surviving Company~~Corporation, as the case may be, shall assume the obligations set forth in this Section ~~6.4.~~ 5.11. (e) The provisions of this Section ~~6.4~~ 5.11 are intended to be for the benefit of, and shall be enforceable by, ~~the parties and~~ each ~~Person entitled to indemnification~~Indemnified Party, ~~exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and ~~representatives. The rights of the Indemnified Persons under this Section 6.4~~ representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any ~~rights~~ such ~~Indemnified Persons~~ person may have ~~under the Organizational Documents of the Company~~ by contract or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4otherwise.

Appears in 1 contract

Samples: Merger Agreement (Xm Satellite Radio Holdings Inc)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the ~~Effective Time~~Closing Date, ~~Parent and~~ the Surviving ~~Company~~ Corporation shall, ~~jointly and severally~~to the fullest extent permitted by applicable Law, indemnify, defend and hold ~~harmless~~ harmless, and provide advancement of expenses to, each Person who is now, or has been at any time prior to the date ~~of this Agreement~~ hereof or who becomes prior to the ~~Effective Time~~Closing Date, a an officer, director or ~~officer~~ employee of Buyer or the Company or any of ~~its~~ their respective Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified ~~Persons~~Parties”) against ~~and from~~ all losses, claims, damages, costs, ~~fines~~expenses, ~~penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities,~~ liabilities or judgments ~~and~~ or amounts that are paid in settlement ~~of,~~ of or ~~incurred~~ in connection with any ~~threatened~~ claim, action, suit, proceeding or ~~actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based,~~ investigation based in whole or in ~~part,~~ part on or ~~arising,~~ arising in whole or in ~~part,~~ part out of the fact that such Person is or was a director, ~~officer~~officer or employee of Buyer, ~~employee or agent of~~ the Company or any ~~of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation~~their respective Subsidiaries, ~~partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether~~ and pertaining to any ~~act~~ matter existing or ~~omission occurring~~ occurring, or ~~existing prior to~~any acts or omissions occurring, at or ~~after~~ prior to the ~~Effective Time and~~ Closing Date, whether asserted or claimed prior to, or at or ~~after~~ after, the ~~Effective Time~~ Closing Date (~~“Indemnified Liabilities”)~~including matters, ~~including all Indemnified Liabilities based~~ acts or omissions occurring in ~~whole or in part on, or arising in whole or in part out of, or pertaining to,~~ connection with the approval of this Agreement or and the ~~Transactions, in each case,~~ consummation of the transactions contemplated hereby) to the ~~fullest~~ same extent ~~permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any~~ such ~~Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought~~ Persons are indemnified or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to ~~require that such determination be made~~ advancement of expenses as of the date hereof by ~~special, independent legal counsel selected by~~ Buyer or the ~~Indemnified Person and approved by Parent or Surviving~~ Company, as ~~applicable (~~the case may be, under the Company’s Restated Certificate, Restated Bylaws or any other written indemnification agreements to which ~~approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company,~~ the Company or is party, in each case as in effect on the ~~Indemnified Person within~~ date hereof and in the ~~last three years. Notwithstanding anything~~ form provided to Buyer prior to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Persondate hereof. (b) For a period of six ~~(6)~~ years ~~following~~ after the ~~Effective Time~~Closing Date, ~~Parent~~ Buyer and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and Sub shall cause the Surviving Corporation to maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company (provided that the Company 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 insured) with respect to claims arising from facts or events that occurred at or before the Closing Date; provided that if the aggregate annual premiums for such policies at any time during such period will exceed 200% of the per annum premium rate paid by the Company and its Subsidiaries toas of the date hereof for such policies, ~~fulfill~~ then the Surviving Corporation shall only be required to provide such coverage as will then be available at an annual premium equal to 200% of such rate; and ~~honor any indemnification, expense advancement~~ provided further that the requirements of this Section 6.5(b) may at the election of Buyer and Sub be satisfied by the purchase of one or ~~exculpation agreements between~~ more “tail” policies prior to the ~~Company~~ Effective Time providing for coverage for an aggregate period of six years after the Effective Time for acts or ~~any of its Subsidiaries and any of its directors, officers~~ omissions occurring at or ~~employees existing immediately~~ prior to the Effective Time. (c) ~~To the extent permitted by applicable Law, Parent and the Surviving~~ The Company shall ~~indemnify any Indemnified Person against~~ pay (as incurred) all expenses, including reasonable ~~costs~~ fees and expenses ~~(including reasonable attorneys’ fees~~ of counsel, that an Indemnified Party may incur in enforcing the indemnity and ~~expenses), such amounts to be payable~~ other obligations provided for in ~~advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under~~ this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder6.5. (d) ~~Parent and~~ If, following the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time; provided, however, that Parent shall not be required to pay an annual premium for the D&O Insurance in excess of (for any one year) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amount. (e) In the event that ParentClosing Date, the Surviving ~~Company or any Subsidiary of the Surviving Company,~~ Corporation or any of ~~their respective~~ its successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving ~~company~~ 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 ~~provisions~~ provision shall be made so that the successors and assigns of ~~Parent,~~ the Surviving ~~Company~~ Corporation or ~~such Subsidiary of the Surviving Company~~its successors or assigns, as the case may be, shall assume the obligations set forth in this Section ~~6.4.~~ 6.5. (e) The provisions of this Section ~~6.4~~ 6.5(e) are intended to be for the benefit of, and shall be enforceable by, ~~the parties and~~ each ~~Person entitled to indemnification~~Indemnified Party, ~~exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and ~~representatives. The rights of the Indemnified Persons under this Section 6.4~~ representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any ~~rights~~ such ~~Indemnified Persons~~ Person may have ~~under the Organizational Documents of the Company~~ by contract or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4otherwise.

Appears in 1 contract

Samples: Merger Agreement (Jazz Pharmaceuticals Inc)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, ~~Parent and~~ the Surviving ~~Company~~ Corporation shall, ~~jointly and severally~~to the fullest extent permitted by applicable law, indemnify, defend and hold ~~harmless~~ harmless, and provide advancement of expenses to, each ~~Person~~ person who is now, or has been at any time prior to the date ~~of this Agreement~~ hereof or who becomes prior to the Effective Time, a an officer, director or ~~officer~~ employee of ~~the Company~~ XM or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “XM Indemnified ~~Persons~~Parties”) against ~~and from~~ all losses, claims, damages, costs, ~~fines~~expenses, ~~penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities,~~ liabilities or judgments ~~and~~ or amounts that are paid in settlement ~~of,~~ of or ~~incurred~~ in connection with any ~~threatened~~ claim, action, suit, proceeding or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities investigation based in whole or in part ~~on,~~ on or arising in whole or in part out ofof the fact that such person is or was a director, officer or employee of XM 34 Table of Contents or any Subsidiary of XM, and pertaining to any matter existing or occurring, or ~~pertaining to~~any acts or omissions occurring, ~~this Agreement~~ at or ~~the Transactions, in each case,~~ prior to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), whether asserted or claimed prior to, or at or after, the Effective Time (i) including matters, acts or omissions occurring in connection with the ~~Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent~~ approval of this Agreement and the ~~Surviving Company shall pay all reasonable fees and expenses~~ consummation of the transactions contemplated hereby) to the same extent such ~~counsel for the Indemnified Persons as promptly as statements therefor~~ persons are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent indemnified or ~~Surviving Company under this Section 6.4, such Indemnified Person shall~~ have the right to ~~require that such determination be made~~ advancement of expenses as of the date of this Agreement by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person XM pursuant to ~~this Agreement~~XM’s Certificate of Incorporation, ~~unless such settlement~~By-laws and indemnification agreements, ~~compromise~~if any, ~~consent or termination includes an unconditional release~~ in existence on the date hereof with any directors, officers and employees of ~~all Indemnified Persons from all liability arising out of such Proceeding~~ XM and ~~does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person~~its Subsidiaries. (b) For a period of six ~~(6)~~ years ~~following~~ after the Effective Time, ~~Parent and~~ the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and Corporation shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement maintained in effect on the ~~date hereof or otherwise, regardless~~ current policies of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability~~ insurance ~~and employment practices liability insurance in an amount and scope~~ maintained by XM (provided that the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least ~~as favorable as~~ the ~~Company’s existing policies~~ same coverage and amounts containing terms and conditions which are no less advantageous to the insured) with respect to ~~matters, acts~~ claims arising from facts or ~~omissions existing or occurring~~ events which occurred at or ~~prior to~~ before the Effective Time; provided, however, that ~~Parent~~ the Surviving Corporation shall not be ~~required~~ obligated to ~~pay an~~ make annual premium payments for such insurance to the ~~D&O Insurance in excess of (for any one year) 150~~extent such premiums exceed 300% of the ~~annual premium~~ premiums paid ~~by the Company for such insurance~~ as of the date ~~of this Agreement; and provided, further, that if the annual premiums of~~ hereof by XM for such insurance (“XM’s Current Premium”), and if such premiums for such insurance would at any time exceed 300% of XM’s Current Premium, 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 ~~exceed such amount, Parent shall be obligated~~ available at an annual premium equal to ~~obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amount~~300% of XM’s Current Premium. (ec) In The Surviving Corporation shall pay (as incurred) all expenses, including reasonable fees and expenses of counsel, which an indemnified person may incur in enforcing the ~~event that Parent,~~ indemnity and other obligations provided for in this Section 5.11. (d) If the Surviving ~~Company or any Subsidiary of the Surviving Company,~~ Corporation or any of ~~their respective~~ its successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving ~~company~~ 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~~person, then, and in each such case, to the extent necessary, proper ~~provisions~~ provision shall be made so that the successors and assigns of ~~Parent,~~ the Surviving ~~Company or such Subsidiary of the Surviving Company~~Corporation, as the case may be, shall assume the obligations set forth in this Section ~~6.4.~~ 5.11. (e) The provisions of this Section ~~6.4~~ 5.11 are intended to be for the benefit of, and shall be enforceable by, ~~the parties and~~ each ~~Person entitled to indemnification~~Indemnified Party, ~~exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and ~~representatives. The rights of the Indemnified Persons under this Section 6.4~~ representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any ~~rights~~ such ~~Indemnified Persons~~ person may have ~~under the Organizational Documents of the Company~~ by contract or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4otherwise.

Appears in 1 contract

Samples: Merger Agreement (Sirius Satellite Radio Inc)

Indemnification; Directors’ and Officers’ Insurance. (a) Parent agrees that all rights existing as of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from From and after the Effective Time, each of Parent and the Surviving ~~Company shall, jointly and severally, indemnify, defend~~ Corporation shall indemnify and hold ~~harmless each Person who is now~~harmless, ~~or has been at any time prior~~ to the ~~date~~ fullest extent permitted by applicable Law, each present and former director, officer and employee of ~~this Agreement~~ the Company and its Subsidiaries (in each case, when acting in such capacity) (collectively, the “Company Indemnified Parties”) against any costs or ~~who becomes prior to~~ expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, whether arising before 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~~ director, officer or ~~officer~~ employee of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against~~ person and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions 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 transactions contemplated by this Agreement. Parent and the Surviving Corporation shall also advance expenses as incurred by such Company Indemnified Party to the fullest extent permitted by applicable Law; provided, ~~however~~that the Company Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Company Indemnified Party is not entitled to indemnification. Parent and the Surviving Corporation shall reasonably cooperate with the Company Indemnified Party, and the Company Indemnified Party shall reasonably cooperate with Parent and the Surviving Corporation, in the defense of any such claim, action, suit, proceeding or investigation. (b) For a period of six (6) years after the Effective Time, Parent shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance maintained by the Company (provided, that Parent may substitute therefor policies from an insurer with the same or better credit rating of at least the same coverage and amounts and containing terms and conditions which are no less advantageous to the insured) with respect to claims against the present and former officers and directors of the Company 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, that Parent shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~300% 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 which, in Parent’s good faith determination, provide the maximum coverage available at an annual premium equal to the Premium Cap. In lieu of the foregoing, the Company, with the prior consent of Parent (not to be unreasonably withheld, delayed or conditioned), 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 (6)-year “tail” policy under the Company’s existing directors’ and officers’ liability insurance policy providing coverage equivalent to the current policies of directors’ and officers’ liability insurance maintained by the Company as of the date ~~of this Agreement;~~ hereof if and ~~provided~~to the extent that the same may be obtained for an amount that, ~~further~~in the aggregate, ~~that if~~ does not exceed the ~~annual premiums of~~ Premium Cap. If the Company purchases such ~~insurance coverage exceed such amount~~a “tail” policy, Parent or the Surviving Corporation shall ~~be obligated~~ maintain such “tail” policy in full force and effect and continue to ~~obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amount~~honor its obligations thereunder. (ec) ~~In the event that Parent, the Surviving Company or any Subsidiary~~ The obligations of the Surviving ~~Company~~Corporation, ~~or any of their respective successors or assigns, (i) consolidates with or merges into any other Person~~ Parent and the Company under this Section 6.6 shall not be terminated or modified after the ~~continuing~~ Effective Time in a manner so as to adversely affect any Company Indemnified Party or ~~surviving company or entity~~ any other person entitled to the benefit of ~~such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that~~ this Section 6.6 without the ~~successors and assigns of Parent, the Surviving Company or such Subsidiary~~ prior written consent of the ~~Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4.~~ affected Company Indemnified Party or other affected person. (d) The provisions of this Section ~~6.4~~ 6.6 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of~~ If Parent, the ~~Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ Surviving Corporation or any of their respective 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 ~~Subsidiaries~~assets or liabilities to any other entity or engage in any similar transaction, ~~or under any applicable contracts or Law. Parent and~~ then in each case to the ~~Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing~~ extent the ~~indemnity and other~~ obligations ~~provided~~ set forth in this Section ~~6.4~~6.6 are not otherwise transferred and assumed by such successors and assigns by operation of Law or otherwise, Parent or the Surviving Corporation will cause proper provision to be made so that the successors and assigns of Parent or the Surviving Corporation, as applicable, will expressly assume the obligations set forth in this Section 6.6.

Appears in 1 contract

Samples: Merger Agreement (Stonegate Mortgage Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing as~~ From and after the Effective Time, the Surviving Corporation shall indemnify and hold harmless each present and former director and officer of ~~the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company~~ Sterling or any of its Subsidiaries and any person who is or was serving at or prior to the Effective Time as a director or officer (or in a like capacity) of another person at the request of Sterling or any of its Subsidiaries (collectively, the "Sterling Indemnified Parties") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, damages or liabilities incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, and whether arising before or after the Effective Time, arising out of the fact that such person is or was a director or officer of Sterling or any of its Subsidiaries or serving as a director or officer (or in a like capacity) of another person at the request of Sterling or any of its Subsidiaries and in respect of any acts or omissions (or alleged acts or omissions) of or by any such Sterling Indemnified Party occurring (or alleged to have occurred) at or prior to the Effective Time (including the transactions contemplated by this Agreement), to the fullest extent permitted by applicable Law and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted by applicable Law; 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 Sterling Indemnified Party is not entitled to indemnification. (b) All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of any Sterling Indemnified Party as provided in the ~~Organizational Documents~~ Sterling Articles, Sterling's Bylaws (or comparable organizational documents of ~~the Company or~~ Sterling's Subsidiaries) and any ~~such Subsidiary, any employment agreement or~~ indemnification ~~agreement~~ agreements in ~~effect on~~ existence as of the date hereof ~~or otherwise (which~~ and set forth on Section 6.7(b) of the Sterling Disclosure Schedule, shall ~~be assumed by Parent~~ survive the Merger and ~~the Surviving Company) will~~ shall continue in full force and effect in accordance with their terms, and ~~Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing~~shall not be amended, ~~from and after the Effective Time, Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now,~~ repealed or ~~has been at any time prior to the date~~ otherwise modified for a period of this Agreement or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or six years after the Effective Time ~~and whether asserted or claimed prior to~~in any manner that would adversely affect the rights thereunder of such Indemnified Parties, ~~at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based~~ it being understood that nothing in ~~whole or in part on, or arising in whole or in part out of, or pertaining to,~~ this ~~Agreement or the Transactions, in each case,~~ sentence shall require any amendment to the ~~fullest extent permitted under applicable Law (and Parent and~~ articles of incorporation or bylaws of the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and Corporation so long as the Surviving ~~Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use~~ Corporation otherwise complies with its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Personobligations hereunder. (bc) For a period of six (6) years ~~following~~ after the Effective Time, ~~Parent and~~ the Surviving ~~Company~~ Corporation shall ~~not amend~~cause to be maintained in effect the current policies of directors' and officers' liability insurance maintained by Sterling (provided, ~~repeal or otherwise modify any provision in the Organizational Documents of~~ that the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance Corporation may substitute therefor policies ~~(collectively, the “D&O Insurance”)~~ with a ~~claims period~~ substantially comparable insurer of at least ~~six years from the Effective Time from an insurance carrier with~~ the same ~~or better credit rating as~~ coverage and amounts containing terms and conditions which are no less advantageous to the ~~Company’s current insurance carrier~~ insured) with respect to directors’ and officers’ liability insurance, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts claims arising from facts or ~~omissions existing or occurring~~ events which occurred at or ~~prior to~~ before the Effective Time; provided, however, that ~~Parent~~ the Surviving Corporation shall not be ~~required~~ obligated to ~~pay~~ make annual premium payments for such insurance to the extent such premiums exceed the amount set forth on Section 6.7(c)(i) of the Sterling Disclosure Schedule (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 ~~for~~ equal to the ~~D&O Insurance in excess of (for any one year) 150%~~ Premium Cap. In lieu of the ~~annual premium paid by~~ foregoing, Umpqua, or Sterling upon the ~~Company for such insurance as~~ consent of ~~the date of this Agreement; and provided~~Umpqua, ~~further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to~~ may obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year prepaid "tail" policy under Sterling's existing directors and officers insurance policy providing equivalent coverage to that described in the preceding sentence for an aggregate price of no more than the amount set forth on Section 6.7(c)(ii) of the Sterling Disclosure Schedule. Sterling and Umpqua agree to cooperate in good faith in connection with obtaining such "tail" policy, ~~for a cost not exceeding such amount~~including with respect to determining terms and pricing. (ed) ~~In the event that Parent,~~ If the Surviving ~~Company~~ Corporation or ~~any Subsidiary of the Surviving Company, or any of their respective~~ its successors or ~~assigns,~~ assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving ~~company~~ corporation or entity of in such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any ~~Person~~person, then, in each ~~such~~ case, to the extent necessary, proper ~~provisions~~ provision shall be made so that the successors and assigns of ~~Parent,~~ the Surviving ~~Company or such Subsidiary of the Surviving Company, as the case may be,~~ Corporation shall also assume the obligations set forth in this Section ~~6.4~~6.7. The rights of each Sterling Indemnified Party under this Section 6.7 shall be in addition to any rights such person may have under the Sterling Articles and Sterling Bylaws (or comparable organizational documents of Sterling's Subsidiaries), or under applicable Law or any agreement of any Sterling Indemnified Party with Sterling or any of its Subsidiaries (including the indemnification agreements in existence as of the date hereof and set forth on Section 6.7(d) of the Sterling Disclosure Schedule) which shall survive the Merger and shall continue to be in full force and effect in accordance with their terms, and shall not be amended, repealed or otherwise modified. The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Sterling Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable contracts or Law. Parent and the Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 6.4.

Appears in 1 contract

Samples: Merger Agreement (Umpqua Holdings Corp)

Indemnification; Directors’ and Officers’ Insurance. (a) From and after the Effective Time, Parent ~~agrees that all rights existing as~~ shall indemnify and hold harmless, to the fullest extent permitted by applicable law, each present and former director, officer or employee of the ~~date of this Agreement to indemnification, advancement of expenses~~ Company and ~~exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees~~ its Subsidiaries as well as fiduciaries of the Company or any of its Subsidiaries ~~as provided in the Organizational Documents of~~ under the Company Benefit Plans (in each case, when acting in such capacity) (collectively, the “Company Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection with any ~~such Subsidiary~~threatened or actual claim, ~~any employment agreement~~ action, suit, proceeding or ~~indemnification agreement in effect on the date hereof~~ investigation, whether civil, criminal, administrative or ~~otherwise (which shall be assumed by Parent and the Surviving Company) will continue in full force and effect in accordance with their terms~~investigative, ~~and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing, from and~~ whether arising before or after the Effective Time, ~~Parent and the Surviving Company shall, jointly and severally, indemnify, defend and hold harmless each Person who is now~~arising in whole or in part out of, or ~~has been at any time prior to~~ pertaining to, the ~~date~~ fact that such person is Table of ~~this Agreement~~ Contents or ~~who becomes prior to the Effective Time~~was a director, ~~a director~~ officer or ~~officer~~ employee of the Company or any of its ~~Subsidiaries~~ Subsidiaries, is or was a fiduciary under any of the Company Benefit Plans, or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another ~~corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against~~ person and from all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified Person. (b) For a period of six (6) years following the Effective Time, Parent and the Surviving Company shall not amend, repeal or otherwise modify any provision in the Organizational Documents of the Surviving Company or its Subsidiaries in any manner that would affect adversely the rights thereunder or under the Organizational Documents of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) To the extent permitted by applicable Law, Parent and the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time, including matters, acts or omissions occurring in connection with the consideration and approval of this Agreement and the consummation of the transactions contemplated by this Agreement; and Parent shall also advance expenses as incurred by such Company Indemnified Party to the fullest extent permitted by applicable law, provided that the Company Indemnified Party to whom expenses are advanced provides an undertaking, in a reasonable and customary form, to repay such advances if it is ultimately determined that such Company Indemnified Party is not entitled to indemnification. (b) Subject to the following sentence, for a period of six (6) years after the Effective Time, Parent shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance maintained by the Company and/or its Subsidiaries and any similar policies covering fiduciaries under the Company Benefit Plans (provided, that Parent 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 insured) with respect to claims against the present and former officers and directors of the Company 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~~, however~~, that Parent shall not be ~~required~~ obligated to ~~pay~~ expend, on an annual ~~premium for the D&O Insurance~~ basis, an amount in excess of ~~(for any one year) 150~~300% of the current annual premium paid as of the date hereof by the Company for such insurance as (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 available at an annual premium equal to the Premium Cap. In lieu of the ~~date~~ foregoing, the Company, in consultation with, but only upon the consent of, Parent, may (and at the request of ~~this Agreement; and provided~~Parent, ~~further, that if~~ the ~~annual premiums of such insurance coverage exceed such amount, Parent~~ Company shall ~~be obligated to~~ use its reasonable best efforts to) obtain ~~a policy with the greatest coverage available, with respect to facts, acts, events~~ at or ~~omissions occurring~~ prior to the Effective ~~Time~~Time a six-year “tail” policy under the Company’s existing directors and officers insurance policy and any similar policy covering fiduciaries under the Company Benefit Plans 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, ~~for~~ in the aggregate, does not exceed the Premium Cap. If the Company purchases such a ~~cost not exceeding~~ “tail policy,” Parent shall maintain such ~~amount~~“tail policy” in full force and effect and continue to honor its obligations thereunder. (ec) ~~In the event that Parent, the Surviving Company or any Subsidiary~~ The obligations of the ~~Surviving Company, or any of their respective successors or assigns, (i) consolidates with or merges into any other Person~~ Parent and the Company under this Section 6.7 shall not be terminated or modified after the ~~continuing~~ Effective Time in a manner so as to adversely affect any Company Indemnified Party or ~~surviving company or entity~~ any other person entitled to the benefit of ~~such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that~~ this Section 6.7 without the ~~successors and assigns of Parent, the Surviving Company or such Subsidiary~~ prior written consent of the ~~Surviving Company, as the case may be, shall assume the obligations set forth in this Section 6.4.~~ affected Company Indemnified Party or affected person. (d) The provisions of this Section ~~6.4~~ 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Company Indemnified Party and ~~each Person entitled to indemnification, exculpation, insurance coverage~~ his or ~~expense advancement or any other right pursuant to this Section 6.4, and his,~~ her ~~or its~~ heirs and representatives. ~~The rights of the Indemnified Persons under this Section 6.4 are in addition to any rights such Indemnified Persons may have under the Organizational Documents of the Company~~ If Parent or any of its ~~Subsidiaries~~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 ~~under~~ substantially all of its assets or deposits to any ~~applicable contracts~~ other entity or ~~Law.~~ engage 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 ~~Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other~~ obligations ~~provided~~ set forth in this Section ~~6.4~~6.7.

Appears in 1 contract

Samples: Merger Agreement (Fifth Third Bancorp)

Indemnification; Directors’ and Officers’ Insurance. (a) ~~Parent agrees that all rights existing as~~ For a period of the date of this Agreement to indemnification, advancement of expenses and exculpation from Indemnified Liabilities in favor of current and/or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Organizational Documents of the Company or any such Subsidiary, any employment agreement or indemnification agreement in effect on the date hereof or otherwise six (~~which shall be assumed by Parent and the Surviving Company~~6) ~~will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company to perform its respective obligations thereunder. Without limiting the foregoing,~~ years from and after the Effective Time, ~~Parent and~~ the Surviving ~~Company~~ Corporation shall~~, jointly and severally, indemnify, defend~~ : (i) indemnify and hold harmless each ~~Person~~ 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,~~ served as a director or officer of the Company or any of its Subsidiaries prior to the Effective Time (collectively, the “Covered Persons”) to the extent provided for under the terms and conditions of the certificate of incorporation or is bylaws of the Company (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 ~~was serving~~ 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 5.12 shall extend to acts or omissions occurring at or before the ~~request~~ 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 to an individual who has ceased to be a director or officer of the Company or any of its Subsidiaries ~~as a director~~ 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 5.12, the term “Claim” means any threatened, asserted, pending or ~~officer~~ completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the Company, any Governmental Entity or any other party, that any Covered Person in good faith believes might lead to the institution of ~~another corporation~~any such action, ~~partnership~~suit or proceeding, ~~limited liability company~~whether civil, ~~joint venture~~criminal, ~~Employee Benefit Plan~~administrative, ~~trust~~ investigative or other, including any arbitration or other ~~enterprise (the “Indemnified Persons”) against and from all losses~~alternative dispute resolution mechanism, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities, judgments and amounts that are paid in settlement of, or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is, was or becomes a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, arising out of ~~the fact~~ or pertaining to matters that relate to such ~~Person is~~ Covered Person’s duties or ~~was~~ service as a director, officer, trustee, employee, agent, or fiduciary of the Company, any of its Subsidiaries, any employee benefit plan maintained by any of the foregoing at or ~~agent of~~ prior to the Effective Time and any other Person at the request the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and Parent and the Surviving Company shall, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), (i) the Indemnified Persons may retain the Company’s regularly engaged legal counsel or other counsel satisfactory to such Indemnified Person, and Parent and the Surviving Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor are received, and (ii) the Surviving Company shall use its reasonable best efforts to assist in the defense of any such matter. With respect to any determination of whether any Indemnified Person is entitled to indemnification by Parent or Surviving Company under this Section 6.4, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Parent or Surviving Company, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Parent, Surviving Company, the Company or the Indemnified Person within the last three years. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such Proceeding and does not include the imposition of equitable relief on, or the admission of fault or wrongdoing by, any Indemnified PersonSubsidiaries. (b) ~~For a period~~ In addition to, and not in substitution for the obligations of ~~six (6) years following~~ the Surviving Corporation in Section 5.12(a), from and after the Effective Time, ~~Parent and~~ the Surviving ~~Company~~ Corporation shall ~~not amend~~also keep in full force and effect, ~~repeal or otherwise modify~~ and comply with the terms and conditions of, any ~~provision~~ agreement listed in ~~the Organizational Documents~~ Section 5.12(b) of the ~~Surviving~~ Company ~~or its Subsidiaries~~ Disclosure Schedule in ~~any manner that would affect adversely the rights thereunder or under the Organizational Documents~~ effect as of the Surviving Company or any of its Subsidiaries of any Person to indemnification, exculpation and expense advancement except to the extent required by applicable Law. Parent shall, and shall cause the Surviving Company and its Subsidiaries to, fulfill and honor any indemnification, expense advancement or exculpation agreements between the Company or any of its Subsidiaries and any of its directors, officers or employees existing immediately prior the Effective Time. (c) ~~To the extent permitted by applicable Law, Parent and~~ If the Surviving Company shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 6.4(a), relating to the enforcement of such Indemnified Person’s rights under this Section 6.4 or under any Organizational Documents of the Company Corporation or any of its Subsidiaries, any employment agreement or indemnification agreement in effect on the date hereof or otherwise, regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Parent and the Surviving Company shall put in place, and Parent shall fully prepay immediately prior to the Effective Time, “tail” insurance policies (collectively, the “D&O Insurance”) with a claims period of at least six years from 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, fiduciary liability insurance and employment practices liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time; provided, however, that Parent shall not be required to pay an annual premium for the D&O Insurance in excess of (for any one year) 150% of the annual premium paid by the Company for such insurance as of the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available, with respect to facts, acts, events or omissions occurring prior to the Effective Time, for a cost not exceeding such amount. (e) In the event that Parent, the Surviving Company or any Subsidiary of the Surviving Company, or any of their respective successors or ~~assigns,~~ assigns shall (i) ~~consolidates~~ consolidate with or ~~merges~~ merge into any other Person and shall not be the continuing or surviving ~~company or entity~~ Person of such consolidation or merger or (ii) ~~transfers~~ transfer all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of ~~Parent,~~ the Surviving ~~Company or such Subsidiary~~ Corporation, assume all of the obligations of the Surviving ~~Company, as the case may be, shall assume the obligations~~ Corporation set forth in this Section ~~6.4.~~ 5.12. (d) The provisions of this Section ~~6.4~~ 5.12 (i) are intended to be for the benefit of, and shall be enforceable by, ~~the parties~~ each Covered Person and ~~each Person entitled to indemnification~~his or her heirs and representatives and (ii) are in addition to, ~~exculpation~~and not in substitution for, ~~insurance coverage or expense advancement or~~ any other ~~right pursuant~~ rights to ~~this Section 6.4, and his, her~~ indemnification or ~~its heirs and representatives~~contribution that any such Person may have by contract or otherwise. The ~~rights~~ obligations of Parent or the ~~Indemnified Persons~~ Surviving Corporation under this Section ~~6.4 are~~ 5.12 shall not be terminated or modified in ~~addition~~ such a manner as to adversely affect the rights of any ~~rights~~ Covered Person under this Section 5.12 without the consent of such ~~Indemnified Persons may have~~ affected Covered Person. (e) Notwithstanding anything to the contrary set forth herein, the Company shall, prior to or in connection with the Closing, purchase a “tail” policy under the ~~Organizational Documents~~ Company’s existing directors’ and officers’ insurance policy, with the cost of such Tail Policy to be included in the Company ~~or any of its Subsidiaries, or under any applicable contracts or Law. Parent and~~ Transaction Expenses (the ~~Surviving Company shall pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided~~ “D&O Tail Expense”). (f) Nothing in this Section ~~6.4~~5.12 shall be construed to limit any right that Parent would otherwise have to obtain indemnification or compensation from the Escrow Fund in connection with any claim for indemnification by any of the Covered Persons or any matter underlying any such claim.

Appears in 1 contract

Samples: Sale and Purchase of Shares Agreement (Nice Systems LTD)

Common use of Indemnification; Directors’ and Officers’ Insurance Clause in Contracts