Indemnification; D&O Insurance. (a) From the Effective Time through the sixth anniversary thereof, Parent shall, and shall cause the Surviving Corporation to, indemnify and hold harmless any person (an “Indemnified Party”) who is or was a party, or is threatened to be made a party, to any threatened, pending or completed action, claim, litigation, suit or proceeding, whether civil, criminal, administrative or investigative, whether predicated on foreign, federal, state or local law and whether formal or informal (collectively for purposes of this Section 7.06, “action(s)”), by reason of his status as, or the fact that he is or was, a director and/or an executive officer (collectively for purposes of this Section 7.06, “executive(s)”) of the Company, and/or is or was serving as an executive officer or director of another corporation, partnership, joint venture, employee benefit plan, trust or other similar enterprise affiliated with the Company (any and/or all of which are referred to in this Section 7.06 as an “affiliate”), and as to acts performed in the course of such executive’s duty to the Company and/or to an affiliate, in each case against expenses, fees, costs and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) incurred by or on behalf of an executive in connection with any action (including in connection with the investigation, defense, settlement or appeal of such action) that pertains to a matter existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law. Expenses (including reasonable attorneys’ fees) incurred by any Indemnified Party in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by Parent or the Surviving Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified under this Section 7.06(a). The indemnification rights hereunder shall be in addition to any other rights such Indemnified Party may have under the certificate of incorporation and by-laws of the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise. The certificate of incorporation and by-laws of the Surviving Corporation shall contain, and Parent shall cause the Surviving Corporation to fulfill and honor, provisions with respect to indemnification and exculpation that are at least as favorable to the Indemnified Parties as those set forth in the Company Charter and Company By-laws as of the date of this Agreement, 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 of the Indemnified Parties. The parties agree that the provisions relating to exoneration of directors and officers and the rights to indemnification (including provisions relating to advances of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to matters occurring through the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, that all rights to indemnification in respect of any action pending or asserted or claim made within such period shall continue until the disposition of such action or resolution of such claim. (b) Any Indemnified Party wishing to claim indemnification under Section 7.06(a) shall promptly notify Parent upon learning of any such claim, action, suit, proceeding or investigation, but the failure to so notify shall not relieve Parent of any liability it may have to such Indemnified Party if such failure does not materially prejudice Parent. (c) For a period of six years after the Effective Time, Parent 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 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; provided, that the Surviving Corporation shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 300% of the premiums paid as of the date hereof by the Company for such insurance (the “Current Premium”), and if such premiums for such insurance would at any time exceed 300% of the 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 equal to 300% of the Current Premium; provided, further, that Parent may satisfy its obligations under this Section 7.06(c) by obtaining “tail” insurance policies at the Effective Time that provide substantially similar coverage. (d) If Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 7.06. (e) 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 indemnity and other rights and obligations provided for in this Section 7.06. (f) The provisions of this Section 7.06 are (i) intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Carters Inc), Merger Agreement (Oshkosh B Gosh Inc)
Indemnification; D&O Insurance. (a) From To the Effective Time through fullest extent permitted by applicable law, the sixth anniversary thereof, Parent shall, and Company shall cause the Surviving Corporation to, indemnify and hold harmless any person ZelnickMedia and its affiliates, and each of their respective members, managers, directors, officers, employees, counsel, agents, representatives, contractors and affiliates (each such individual or entity to be referred to hereinafter as an “Indemnified PartyPerson”) who is ), from and against any loss, claim, damage or was liability, joint or several, and any action in respect thereof, whether or not involving a party, or is threatened to be made a third party, to any threatenedwhich an Indemnified Person may be subject, pending or completed actioninsofar as such loss, claim, litigationdamage, suit liability or proceedingaction relates to, whether civil, criminal, administrative arises out of or investigative, whether predicated on foreign, federal, state results from any Covered Event (as such term is defined below) or local law and whether formal or informal (collectively for purposes of this Section 7.06, “action(s)”), by reason of his status as, or the fact that he is or was, a director and/or an executive officer (collectively for purposes of this Section 7.06, “executive(s)”) of the Company, and/or is or was serving as an executive officer or director of another corporation, partnership, joint venture, employee benefit plan, trust or other similar enterprise affiliated with the Company (any and/or all of which are referred to in this Section 7.06 as an “affiliate”)alleged Covered Event, and as to acts performed in the course of will reimburse such executive’s duty to the Company and/or to an affiliateIndemnified Person upon request for all expenses (including, in each case against expenseswithout limitation, fees, costs and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) incurred by such Indemnified Person in connection with investigating, defending or on behalf preparing to defend against any such loss, claim, damage, liability or action, as such expenses are incurred or paid. The term “Covered Event” shall mean (a) any action taken, or services performed, by an Indemnified Person, related to or consistent with the terms of an executive this Agreement or the Original Agreement, or (b) any action taken, or omitted to be taken, by the Company or any of its managers, directors, officers, employees, agents or affiliates, in connection with any action (including matter in connection with the investigation, defense, settlement or appeal of such action) that pertains which an Indemnified Person has been involved pursuant to a matter existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law. Expenses (including reasonable attorneys’ fees) incurred by any Indemnified Party in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by Parent this Agreement or the Surviving Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified under this Section 7.06(a). The indemnification rights hereunder shall be in addition to any other rights such Indemnified Party may have under the certificate of incorporation and by-laws of the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise. The certificate of incorporation and by-laws of the Surviving Corporation shall contain, and Parent shall cause the Surviving Corporation to fulfill and honor, provisions with respect to indemnification and exculpation that are at least as favorable to the Indemnified Parties as those set forth in the Company Charter and Company By-laws as of the date of this Original Agreement, 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 of the Indemnified Parties. The parties agree that the provisions relating to exoneration of directors and officers and the rights to indemnification (including provisions relating to advances of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to matters occurring through the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, that all rights the term “Covered Event,” with respect to indemnification in respect an Indemnified Person, shall exclude any loss, claim, damage, liability or expense to the extent determined by the final judgment of any action pending a court of competent jurisdiction to have been caused from the gross negligence, fraud, bad faith or asserted or claim made within such period shall continue until the disposition willful misfeasance of such action Indemnified Person or resolution any affiliate thereof. The Company shall cover the designees of such claim.
(b) Any Indemnified Party wishing to claim indemnification ZelnickMedia under Section 7.06(a) shall promptly notify Parent upon learning of any such claim, action, suit, proceeding or investigation, but the failure to so notify shall not relieve Parent of any liability it may have to such Indemnified Party if such failure does not materially prejudice Parent.
(c) For a period of six years after the Effective Time, Parent shall cause the Surviving Corporation to maintain in effect the current policies of directors’ directors and officers’ liability insurance maintained by both during and, while potential liability exists, after the Company (provided, that the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions 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; provided, that the Surviving Corporation shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 300% of the premiums paid as of the date hereof by the Company for such insurance (the “Current Premium”), and if such premiums for such insurance would at any time exceed 300% of the 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 equal to 300% of the Current Premium; provided, further, that Parent may satisfy its obligations under this Section 7.06(c) by obtaining “tail” insurance policies at the Effective Time that provide substantially similar coverage.
(d) If Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 7.06.
(e) 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 indemnity and other rights and obligations provided for in this Section 7.06.
(f) The provisions term of this Section 7.06 are (i) intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives and (ii) Agreement in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have amounts reasonably requested by contract or otherwiseZelnickMedia.
Appears in 2 contracts
Samples: Management Agreement, Management Agreement (Take Two Interactive Software Inc)
Indemnification; D&O Insurance. (a) From To the Effective Time through fullest extent permitted by applicable law, the sixth anniversary thereof, Parent shall, and Company shall cause the Surviving Corporation to, indemnify and hold harmless any person ZelnickMedia and its affiliates, and each of their respective members, managers, directors, officers, employees, counsel, agents, representatives, contractors and affiliates (each such individual or entity to be referred to hereinafter as an “Indemnified PartyPerson”) who is ), from and against any loss, claim, damage or was liability, joint or several, and any action in respect thereof, whether or not involving a party, or is threatened to be made a third party, to any threatenedwhich an Indemnified Person may be subject, pending or completed actioninsofar as such loss, claim, litigationdamage, suit liability or proceedingaction relates to, whether civil, criminal, administrative arises out of or investigative, whether predicated on foreign, federal, state results from any Covered Event (as such term is defined below) or local law and whether formal or informal (collectively for purposes of this Section 7.06, “action(s)”), by reason of his status as, or the fact that he is or was, a director and/or an executive officer (collectively for purposes of this Section 7.06, “executive(s)”) of the Company, and/or is or was serving as an executive officer or director of another corporation, partnership, joint venture, employee benefit plan, trust or other similar enterprise affiliated with the Company (any and/or all of which are referred to in this Section 7.06 as an “affiliate”)alleged Covered Event, and as to acts performed in the course of will reimburse such executive’s duty to the Company and/or to an affiliateIndemnified Person upon request for all expenses (including, in each case against expenseswithout limitation, fees, costs and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) incurred by such Indemnified Person in connection with investigating, defending or on behalf preparing to defend against any such loss, claim, damage, liability or action, as such expenses are incurred or paid. The term “Covered Event” shall mean (a) any action taken, or services performed, by an Indemnified Person, related to or consistent with the terms of an executive this Agreement, the 2014 Agreement, the 2011 Agreement or the Original Agreement, or (b) any action taken, or omitted to be taken, by the Company or any of its managers, directors, officers, employees, agents or affiliates, in connection with any action (including matter in connection with the investigation, defense, settlement or appeal of such action) that pertains which an Indemnified Person has been involved pursuant to a matter existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law. Expenses (including reasonable attorneys’ fees) incurred by any Indemnified Party in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by Parent or the Surviving Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified under this Section 7.06(a). The indemnification rights hereunder shall be in addition to any other rights such Indemnified Party may have under the certificate of incorporation and by-laws of the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise. The certificate of incorporation and by-laws of the Surviving Corporation shall contain, and Parent shall cause the Surviving Corporation to fulfill and honor, provisions with respect to indemnification and exculpation that are at least as favorable to the Indemnified Parties as those set forth in the Company Charter and Company By-laws as of the date of this Agreement, which provisions shall not be amendedthe 2014 Agreement, repealed the 2011 Agreement 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 of the Indemnified Parties. The parties agree that the provisions relating to exoneration of directors and officers and the rights to indemnification (including provisions relating to advances of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to matters occurring through the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective TimeOriginal Agreement; provided, that all rights the term “Covered Event,” with respect to indemnification in respect an Indemnified Person, shall exclude any loss, claim, damage, liability or expense to the extent determined by the final judgment of any action pending a court of competent jurisdiction to have been caused from the gross negligence, fraud, bad faith or asserted or claim made within such period shall continue until the disposition willful misfeasance of such action Indemnified Person or resolution any affiliate thereof. The Company shall cover the designees of such claim.
(b) Any Indemnified Party wishing to claim indemnification ZelnickMedia under Section 7.06(a) shall promptly notify Parent upon learning of any such claim, action, suit, proceeding or investigation, but the failure to so notify shall not relieve Parent of any liability it may have to such Indemnified Party if such failure does not materially prejudice Parent.
(c) For a period of six years after the Effective Time, Parent shall cause the Surviving Corporation to maintain in effect the current policies of directors’ directors and officers’ liability insurance maintained by both during and, while potential liability exists, after the Company (provided, that the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions 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; provided, that the Surviving Corporation shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 300% of the premiums paid as of the date hereof by the Company for such insurance (the “Current Premium”), and if such premiums for such insurance would at any time exceed 300% of the 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 equal to 300% of the Current Premium; provided, further, that Parent may satisfy its obligations under this Section 7.06(c) by obtaining “tail” insurance policies at the Effective Time that provide substantially similar coverage.
(d) If Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 7.06.
(e) 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 indemnity and other rights and obligations provided for in this Section 7.06.
(f) The provisions term of this Section 7.06 are (i) intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives and (ii) Agreement in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have amounts reasonably requested by contract or otherwiseZelnickMedia.
Appears in 2 contracts
Samples: Management Agreement, Management Agreement (Take Two Interactive Software Inc)
Indemnification; D&O Insurance. (a) From 12.1 If the Effective Time through the sixth anniversary thereof, Parent shall, and shall cause the Surviving Corporation to, indemnify and hold harmless any person (an “Indemnified Party”) who Executive is or was made a party, or is threatened to be made a party, or reasonably anticipates being made a party, to any threatenedactual, pending threatened or completed reasonably anticipated action, claim, litigation, suit or proceeding, whether civil, criminal, administrative or administrative, investigative, whether predicated on foreignappellate, federal, state or local law and whether formal or informal (collectively for purposes of this Section 7.06, a “action(s)Proceeding”), ) by reason of his status as, or the fact that he is or waswas a director, a director and/or an executive officer (collectively for purposes of this Section 7.06officer, “executive(s)”) member, employee, agent, manager, trustee, consultant or representative of the Company, and/or Company or any of its Affiliates or is or was serving as an executive officer or director at the request of another corporation, partnership, joint venture, employee benefit plan, trust or other similar enterprise affiliated with the Company (or any and/or all of which are referred to in this Section 7.06 as an “affiliate”)its Affiliates, and as to acts performed in the course of such executive’s duty to the Company and/or to an affiliate, in each case against expenses, fees, costs and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) incurred by or on behalf of an executive in connection with his service hereunder, as a director, officer, member, employee, agent, manager, trustee, consultant or representative of another person or entity, or if any action (including in connection with the claim, demand, request, investigation, defensedispute, settlement controversy, threat, discovery request, or appeal request for testimony or information (a “Claim”) is made, is threatened to be made, or is reasonably anticipated to be made, that arises out of such action) that pertains to a matter existing or occurring at or prior relates to the Effective TimeExecutive’s service in any of the foregoing capacities, whether asserted or claimed prior to, at or after then the Effective Time, Executive shall promptly be indemnified and held harmless by the Company to the fullest extent permitted or authorized by the corporate governance documents of the Company, or if greater, by applicable law, against any and all costs, expenses, liabilities and losses (including, without limitation, attorneys' and other professional fees and charges, judgments, interest, expenses of investigation, penalties, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) incurred or suffered by the Executive in connection therewith or in connection with seeking to enforce his rights under this Section 12.1, and such indemnification shall continue as to the Executive even if he has ceased to be a director, officer, member, employee, agent, manager, trustee, consultant or representative of the Company or other person or entity and shall inure to the benefit of his heirs, executors and administrators. The Executive shall be entitled to prompt advancement by the Company of any and all costs and expenses (including, without limitation, attorneys’ and other professional fees and charges) incurred by him in connection with any such Proceeding or Claim, or in connection with seeking to enforce his rights under this Section 12.1, any such advancement to be made within fifteen (15) days after the Executive gives written notice to the Company, supported by reasonable documentation, requesting such advancement. Such notice shall include an undertaking by the Executive to repay the amount advanced if he is ultimately determined not to be entitled to indemnification against such costs and expenses. Nothing in this Agreement shall operate to limit or extinguish any right to indemnification, advancement of expenses, or contribution that the Executive would otherwise have (including, without limitation, by agreement or under applicable law. Expenses ).
12.2 Neither the failure of the Company (including reasonable attorneys’ feesits Board, independent legal counsel or stockholders) incurred to have made a determination prior to the commencement of any Proceeding or Claim concerning payment of amounts claimed by any Indemnified Party in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by Parent or the Surviving Corporation in advance Executive under Section 12.1 that indemnification of the final disposition Executive is proper because he has met the applicable standard of such actionconduct, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified under this Section 7.06(a). The indemnification rights hereunder shall be in addition to any other rights such Indemnified Party may have under the certificate of incorporation and by-laws of the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise. The certificate of incorporation and by-laws of the Surviving Corporation shall contain, and Parent shall cause the Surviving Corporation to fulfill and honor, provisions with respect to indemnification and exculpation that are at least as favorable to the Indemnified Parties as those set forth in the Company Charter and Company By-laws as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for nor a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any of the Indemnified Parties. The parties agree that the provisions relating to exoneration of directors and officers and the rights to indemnification (including provisions relating to advances of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to matters occurring through the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, that all rights to indemnification in respect of any action pending or asserted or claim made within such period shall continue until the disposition of such action or resolution of such claim.
(b) Any Indemnified Party wishing to claim indemnification under Section 7.06(a) shall promptly notify Parent upon learning of any such claim, action, suit, proceeding or investigation, but the failure to so notify shall not relieve Parent of any liability it may have to such Indemnified Party if such failure does not materially prejudice Parent.
(c) For a period of six years after the Effective Time, Parent shall cause the Surviving Corporation to maintain in effect the current policies of directors’ and officers’ liability insurance maintained determination by the Company (providedincluding its Board, independent legal counsel or stockholders) that the Surviving Corporation may substitute therefor policies with Executive has not met such applicable standard of conduct, shall create a substantially comparable insurer presumption that the Executive has not met the applicable standard of conduct.
12.3 A directors' and officers' liability insurance policy (or policies) shall be kept in place, during the Employment Term and for at least six (6) years thereafter, providing coverage to the same coverage and amounts containing terms and conditions which are Executive that is no less advantageous favorable to the insured) him in any respect (including, without limitation, with respect to claims arising from facts scope, exclusions, amounts, and deductibles) than the coverage then being provided to any other present or events which occurred at former senior executive or before the Effective Time; provided, that the Surviving Corporation shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 300% director of the premiums paid as of the date hereof by the Company for such insurance (the “Current Premium”), and if such premiums for such insurance would at any time exceed 300% of the 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 equal to 300% of the Current Premium; provided, further, that Parent may satisfy its obligations under this Section 7.06(c) by obtaining “tail” insurance policies at the Effective Time that provide substantially similar coverageCompany.
(d) If Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 7.06.
(e) 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 indemnity and other rights and obligations provided for in this Section 7.06.
(f) The provisions of this Section 7.06 are (i) intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Employment Agreement (Pxre Group LTD), Employment Agreement (Pxre Group LTD)
Indemnification; D&O Insurance. (a) From To the Effective Time through fullest extent permitted by applicable law, the sixth anniversary thereof, Parent shall, and Company shall cause the Surviving Corporation to, indemnify and hold harmless any person ZelnickMedia and its affiliates, and each of their respective members, managers, directors, officers, employees, counsel, agents, representatives, contractors and affiliates (an “Indemnified Party”) who is each such individual or was a party, or is threatened entity to be made referred to hereinafter as an "Indemnified Person"), from and against any loss, claim, damage or liability, joint or several, and any action in respect thereof, whether or not involving a third party, to any threatenedwhich an Indemnified Person may be subject, pending or completed actioninsofar as such loss, claim, litigationdamage, suit liability or proceedingaction relates to, whether civil, criminal, administrative arises out of or investigative, whether predicated on foreign, federal, state results from any Covered Event (as such term is defined below) or local law and whether formal or informal (collectively for purposes of this Section 7.06, “action(s)”), by reason of his status as, or the fact that he is or was, a director and/or an executive officer (collectively for purposes of this Section 7.06, “executive(s)”) of the Company, and/or is or was serving as an executive officer or director of another corporation, partnership, joint venture, employee benefit plan, trust or other similar enterprise affiliated with the Company (any and/or all of which are referred to in this Section 7.06 as an “affiliate”)alleged Covered Event, and as to acts performed in the course of will reimburse such executive’s duty to the Company and/or to an affiliateIndemnified Person upon request for all expenses (including, in each case against expenseswithout limitation, fees, costs and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) incurred by such Indemnified Person in connection with investigating, defending or on behalf preparing to defend against any such loss, claim, damage, liability or action, as such expenses are incurred or paid. The term "Covered Event" shall mean (a) any action taken, or services performed, by an Indemnified Person, related to or consistent with the terms of an executive this Agreement, or (b) any action taken, or omitted to be taken, by the Company or any of its managers, directors, officers, employees, agents or affiliates, in connection with any action (including matter in connection with the investigation, defense, settlement or appeal of such action) that pertains which an Indemnified Person has been involved pursuant to a matter existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law. Expenses (including reasonable attorneys’ fees) incurred by any Indemnified Party in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by Parent or the Surviving Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified under this Section 7.06(a). The indemnification rights hereunder shall be in addition to any other rights such Indemnified Party may have under the certificate of incorporation and by-laws of the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise. The certificate of incorporation and by-laws of the Surviving Corporation shall contain, and Parent shall cause the Surviving Corporation to fulfill and honor, provisions with respect to indemnification and exculpation that are at least as favorable to the Indemnified Parties as those set forth in the Company Charter and Company By-laws as of the date of this Agreement, 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 of the Indemnified Parties. The parties agree that the provisions relating to exoneration of directors and officers and the rights to indemnification (including provisions relating to advances of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to matters occurring through the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, that all rights to indemnification in respect of any action pending or asserted or claim made within such period shall continue until the disposition of such action or resolution of such claim.
(b) Any Indemnified Party wishing to claim indemnification under Section 7.06(a) shall promptly notify Parent upon learning of any such claim, action, suit, proceeding or investigation, but the failure to so notify shall not relieve Parent of any liability it may have to such Indemnified Party if such failure does not materially prejudice Parent.
(c) For a period of six years after the Effective Time, Parent 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 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; provided, that the Surviving Corporation term "Covered Event," with respect to an Indemnified Person, shall not be obligated to make annual premium payments for such insurance exclude any loss, claim, damage, liability or expense to the extent determined by the final judgment of a court of competent jurisdiction to have been caused from the gross negligence, fraud, bad faith or willful misfeasance of such premiums exceed 300% Indemnified Person or any affiliate thereof. The Company shall cover the designees of ZelnickMedia under directors and officers liability insurance both during and, while potential liability exists, after the term of the premiums paid as of the date hereof Agreement in amounts reasonably requested by the Company for such insurance (the “Current Premium”), and if such premiums for such insurance would at any time exceed 300% of the 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 equal to 300% of the Current Premium; provided, further, that Parent may satisfy its obligations under this Section 7.06(c) by obtaining “tail” insurance policies at the Effective Time that provide substantially similar coverageZelnickMedia.
(d) If Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 7.06.
(e) 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 indemnity and other rights and obligations provided for in this Section 7.06.
(f) The provisions of this Section 7.06 are (i) intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
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Samples: Management Agreement (Sac Capital Advisors LLC), Management Agreement (Take Two Interactive Software Inc)
Indemnification; D&O Insurance. (a) From the Effective Time through the sixth anniversary thereof, Parent shall, and shall cause the Surviving Corporation to, indemnify and hold harmless any person (an “Indemnified Party”) who is or was a party, or is threatened to be made a party, to any threatened, pending or completed action, claim, litigation, suit or proceeding, whether civil, criminal, administrative or investigative, whether predicated on foreign, federal, state or local law and whether formal or informal (collectively for purposes of this Section 7.06, “action(s)”), by reason of his status as, or the fact that he is or was, a director and/or an executive officer (collectively for purposes of this Section 7.06, “executive(s)”) of the Company, and/or is or was serving as an executive officer or director of another corporation, partnership, joint venture, employee benefit plan, trust or other similar enterprise affiliated with the Company (any and/or all of which are referred to in this Section 7.06 as an “affiliate”), and as to acts performed in the course of such executive’s duty to the Company and/or to an affiliate, in each case against expenses, fees, costs and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) incurred by or on behalf of an executive in connection with any action (including in connection with the investigation, defense, settlement or appeal of such action) that pertains to a matter existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law. Expenses (including reasonable attorneys’ fees) incurred by any Indemnified Party in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by Parent or the Surviving Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified under this Section 7.06(a). The indemnification rights hereunder shall be in addition to any other rights such Indemnified Party may have under the certificate of incorporation and by-laws of the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise. The certificate of incorporation and the by-laws of the Surviving Corporation shall contain, and Parent shall cause the Surviving Corporation to fulfill and honor, contain provisions with respect to indemnification and exculpation that are at least as from liability no less favorable to than the Indemnified Parties as those provisions set forth in the Company Charter Company's articles of incorporation and Company Byby-laws as of on the date of this Agreement, which provisions provisions, so long as the Surviving Corporation maintains its corporate existence and is a direct or indirect Subsidiary of Parent, shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that in the aggregate would adversely have a material adverse affect on the rights thereunder of individuals who on or prior to the Effective Time were directors, officers or employees of the Company or its Subsidiaries and were entitled to indemnification under the Company's articles of incorporation and bylaws, unless such modification is required by law. From and after the Effective Time, Parent and the Surviving Corporation (so long as it maintains its corporate existence and is a direct or indirect Subsidiary of Parent), except as provided in the case of clauses (A), (B) and (C) of this Section 5.15(a), shall, to the fullest extent permitted under applicable law, or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each of the directors and officers of the Company as of the date of this Agreement (the "Indemnified Parties") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and, subject to the proviso of the next succeeding sentence, amounts paid in settlement in connection with any threatened, pending or completed civil claim, action, suit, proceeding or investigation arising out of any acts or omissions occurring at or prior to the Effective Time (and whether asserted or claimed prior to, at or after the Effective Time) that are, in whole or in part, based on or arising out of the fact that such person is or was a director, officer or employee of the Company or any of its Subsidiaries or served as a fiduciary under or with respect to any employee benefit plan (within the meaning of Section 3(3) of ERISA) at any time maintained by or contributed to by the Company or any of its Subsidiaries ("Indemnified Liabilities") and all Indemnified Liabilities to the extent they are based on or arise out of the transactions contemplated by this Agreement, in each case until the expiration of the applicable statute of limitations. If the Offer shall have been closed, then in the event of any such threatened, pending or completed claim, action, suit, proceeding, or investigation (whether or not arising before the Changeover Time or the Effective Time), (1) the Parent shall, subject to the limitations set forth herein and applicable law, pay the reasonable fees and expenses of counsel, selected by the Indemnified Parties. The parties agree that , which counsel shall be reasonably satisfactory to the provisions relating Parent promptly after statements therefor are received and otherwise advance to exoneration such Indemnified Party, upon request reimbursement of directors and officers and documented expenses reasonably incurred, such payments shall be made in advance of the rights to indemnification (including provisions relating to advances of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to matters occurring through the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, that all rights to indemnification in respect of any action pending or asserted or claim made within such period shall continue until the final disposition of such action or resolution of such claim.
(b) Any Indemnified Party wishing to claim indemnification under Section 7.06(a) shall promptly notify Parent upon learning of any such claim, action, suit, proceeding or investigationinvestigation to each Indemnified Party to the full extent permitted by applicable law, but provided that the failure person to so notify shall whom expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not relieve Parent entitled to indemnification including, without limitation, (A) as a matter of any liability it may have to law or public policy, (B) as a result of a determination that such Indemnified Party if such failure does not materially prejudice Parent.
(c) For a period of six years after the Effective Time, Parent 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 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) breached his fiduciary duties with respect to claims arising from facts or events which occurred at or before the Effective Time; providedhis duty of loyalty, that such person acted or failed to act other than in good faith or that such person's actions or failure to act involved intentional misconduct or a knowing violation of law or was in connection with a transaction from which the Surviving Corporation shall not be obligated to make annual premium payments for such insurance Indemnified Party derived an improper personal benefit or was in violation of D.G.C.L. §174, or (C) to the extent such premiums exceed 300% fees and expenses are attributable to an aspect of such claim, action, suit, proceeding or investigation in which a person was not the premiums paid as of prevailing party, (2) the date hereof by Parent and the Company for will cooperate in the defense of such insurance (the “Current Premium”)matter, and if such premiums for such insurance would at (3) any time exceed 300% of the Current Premium, then the Surviving Corporation shall cause determination required to be maintained policies made with respect to whether an Indemnified Party's conduct complies with the standards set forth under applicable law and the articles of insurance whichincorporation or bylaws shall be made by independent counsel mutually acceptable to the Parent and the Indemnified Party; provided, in however, that the Surviving Corporation’s good faith determination, provide the maximum coverage available at an annual premium equal to 300% of the Current PremiumParent shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld or delayed); and provided, further, that, in the event that Parent any claim or claims for indemnification are asserted or made within such applicable statute of limitations, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims. The Indemnified Parties, as a group, may satisfy its obligations retain only one law firm to represent them, subject to any requirements to associate local counsel, in each applicable jurisdiction unless there is, under this Section 7.06(capplicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case each Indemnified Person with respect to whom such a conflict exists (or group of such Indemnified Persons who, among them, have no such conflict) by obtaining “tail” insurance policies at the Effective Time that provide substantially similar coveragemay retain one separate law firm, subject to any requirement to associate local counsel in each applicable jurisdiction.
(db) If Parent, In the Surviving Corporation event that the Parent or any of their respective its successors or assigns (i1) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii2) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall will be made so that the successors and assigns of the Parent or Surviving Corporation, as the case may be, shall assume the will undertake obligations which are not materially less favorable than those set forth in this Section 7.065.15.
(ec) The Company shall maintain in effect through the Effective Time, and after the Effective Time, Parent shall use commercially reasonable efforts to maintain or cause Surviving Corporation (so long as the Surviving Corporation shall maintain its corporate existence and shall be a direct or indirect Subsidiary of Parent) to maintain, in effect for six (6) years after the Effective Time: (1) the Company's current directors' and officers' liability insurance or other directors' and officers' liability insurance with a reputable and financially sound insurer that provides coverage that is no less favorable than the Company's current policy, in each case, covering acts or omissions occurring prior to the Effective Time with respect to those persons who are currently covered by the Company's directors' and officers' liability insurance policy on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereof, and (2) the Company's current fiduciary liability insurance policies for employees who serve or have served as fiduciaries under or with respect to any Company Benefit Plan described in Section 3.12(a) or other fiduciary liability insurance with a reputable and financially-sound insurer that provides coverage that is not materially less favorable than the Company's current policy, in each case, covering acts or omissions occurring prior to the Effective Time with respect to those persons who are currently covered by the such fiduciaries' liability insurance policy on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereof; provided, in each case that in no event in any year in such six year period shall the Parent or the Surviving Corporation be required to pay (as incurred) aggregate annual premiums for all expenses (including reasonable fees and expenses of counsel) that an Indemnified Party may incur in enforcing the indemnity and other rights and obligations provided for in insurance under this Section 7.065.15(c) in excess of 150% of the aggregate annual premiums paid by the Company for its year ending December 31, 2001 for such insurance; and provided, further, that if the annual premiums for such insurance coverage exceed such amount, the Parent shall be obligated to obtain a policy with the best coverage reasonably available, in the reasonable judgment of the Board of Directors of the Parent, for a cost up to but not exceeding such amount but such coverage in no event need be more favorable than that then afforded by Parent to its own executive officers and directors.
(fd) The provisions of this Section 7.06 5.15 (1) shall survive the consummation of the Merger at the Effective Time and are (i) intended to be for the benefit of, and shall will be enforceable by, each of the Indemnified PartiesParty, their his or her heirs and their his or her representatives and (ii2) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person person may have by contract or otherwise.
Appears in 1 contract
Indemnification; D&O Insurance. (a) From the Effective Time through the sixth anniversary thereof, Parent shall, and shall cause the Surviving Corporation toto indemnify, indemnify defend and hold harmless any each person (an “Indemnified Party”) who is or was a partynow, or is has been at any time prior to the date hereof or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries (the "Indemnified Parties") from and against all losses, claims, damages, costs and expenses (including attorneys' fees and expenses), liabilities, judgments and settlement amounts that are paid or incurred in connection with any pending, threatened to be made a party, to any threatened, pending or completed claim, action, claimsuit, litigation, suit formal or informal proceeding, formal or informal investigation or formal or informal inquiry (whether civil, criminal, administrative or investigative, whether predicated on foreign, federal, state or local law investigative and whether formal or informal (collectively for purposes of this Section 7.06, “action(s)”), by reason of his status as, or the fact that he is or was, a director and/or an executive officer (collectively for purposes of this Section 7.06, “executive(s)”) of the Company, and/or is or was serving as an executive officer or director of another corporation, partnership, joint venture, employee benefit plan, trust or other similar enterprise affiliated with the Company (any and/or all of which are referred to in this Section 7.06 as an “affiliate”), and as to acts performed in the course of such executive’s duty to the Company and/or to an affiliate, in each case against expenses, fees, costs and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) incurred by or on behalf of an executive in connection with any action (including in connection with the investigation, defense, settlement or appeal of such action) that pertains to a matter existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time), that is (i) based on, or arises out of, the fact that such Indemnified Party is or was a director or officer of the Company or any of its Subsidiaries at any time prior to the Effective Time or (ii) based on, or arising out of, or pertaining to this Agreement or the transactions contemplated hereby, in each case under clause (i) or (ii) above, to the fullest extent a corporation is permitted under applicable lawLaw to indemnify its own directors or officers, as the case may be. Expenses (including reasonable attorneys’ fees) incurred by Without limiting the foregoing, in the event that any such claim, action, suit, proceeding, investigation or inquiry is brought against any Indemnified Party in defending any civil(whether prior to or after the Effective Time), criminal, administrative or investigative action, suit or proceeding shall be paid by Parent or (i) the Surviving Corporation in advance of shall be entitled to participate therein, and to the final disposition of extent it shall wish, to assume the defense thereof, with legal counsel reasonably satisfactory to such actionIndemnified Party, suit or proceeding upon receipt of an undertaking by or on behalf of and, after notice from the Surviving Corporation to such Indemnified Party of Surviving Corporation's election to repay such amount if it assume the defense thereof, the Surviving Corporation shall ultimately not be determined that liable to such Indemnified Party is under this provision for any legal expenses of other counsel or other expenses subsequently incurred by such Indemnified Party, (ii) the Surviving Corporation shall not entitled be liable for any settlement of any claim effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned), and (iii) the Surviving Corporation shall not enter into any settlement of any claim unless such settlement provides for a full and final release of all claims asserted against such Indemnified Party. Any Indemnified Party wishing to be indemnified obtain indemnification under this Section 7.06(a5.10(a). The indemnification rights hereunder shall be in addition to , shall, within ten (10) Business Days of learning of any other rights such claim, action, suit, proceeding, investigation or inquiry, notify Parent thereof; provided, however, the failure of any Indemnified Party may have to give such notice shall not waive any rights of the Indemnified Party under this Section 5.10 except to the certificate of incorporation and by-laws extent that the rights of the Surviving Corporation or any Parent are materially prejudiced thereby). In the event the Surviving Corporation does not assume the defense of its Subsidiariesan action in accordance with this Section 5.10(a), under (i) the DGCL or otherwise. The certificate of incorporation Indemnified Party shall assume the defense thereof with legal counsel reasonably satisfactory to the Surviving Corporation at the cost and by-laws expense of the Surviving Corporation shall containCorporation; (ii) the Indemnified Parties as a group seeking indemnification with respect to the same or a substantially related matter may retain only one law firm with respect to such matter except to the extent that under applicable standards of professional conduct, such counsel would have a conflict representing such Indemnified Party and any other Indemnified Party or Indemnified Parties, (iii) Parent shall cause the Surviving Corporation to fulfill and honor, provisions with respect to indemnification and exculpation that are at least as favorable to the Indemnified Parties as those set forth in the Company Charter and Company By-laws as pay all reasonable expenses of the date of this Agreement, 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 of the Indemnified Parties. The parties agree that the provisions relating to exoneration of directors and officers and the rights to indemnification (including provisions relating to advances of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to matters occurring through the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, that all rights to indemnification in respect of any action pending or asserted or claim made within such period shall continue until the disposition of such action or resolution of such claim.
(b) Any Indemnified Party wishing to claim indemnification under Section 7.06(a) shall promptly notify Parent upon learning of any such claim, action, suit, proceeding proceeding, investigation or investigation, but inquiry to each Indemnified Party to the failure to so notify shall not relieve Parent of any liability it may have full extent permitted by applicable Law promptly after statements therefor are received and otherwise advance to such Indemnified Party if upon request reimbursement of documented expenses reasonably incurred, in either case to the extent not prohibited by the DGCL, (iv) Parent shall cause the Surviving Corporation to pay all reasonable fees and expenses of such failure does counsel for the Indemnified Parties and all costs and expenses of the Indemnified Parties in connection with seeking and obtaining indemnification from the Surviving Corporation, from time to time, in each case within twenty (20) Business Days of the receipt by Parent of a statement from such counsel for the Indemnified Parties and (v) Parent shall cause the Surviving Corporation to use reasonable best efforts to assist in the defense of any such matter. In the event of any dispute as to whether an Indemnified Party's conduct complies with the standards set forth under applicable Law and as applicable, the Company Organizational Documents and the Company Subsidiary Organizational Documents, a determination shall be made by independent counsel reasonably acceptable to the Surviving Corporation and the Indemnified Party. Without limiting the foregoing, to the extent that any Indemnified Party is, by reason of the fact that such Indemnified Party is or was a director or officer of the Company or any of its Subsidiaries, a witness in any claim, action, suit, proceeding, investigation or inquiry to which such Indemnified Party is not materially prejudice a party, such Indemnified Party shall be indemnified and held harmless against all costs and expenses in connection therewith.
(b) Parent's obligations under Section 5.6(a) shall survive until the sixth (6th) anniversary of the Effective Time, provided, that, Parent's obligations pursuant to Section 5.6(a) shall survive such sixth (6th) anniversary, and Parent shall continue to indemnify, defend and hold harmless each Indemnified Party, in accordance with this Section 5.10 with respect to any claim, action, suit, proceeding or investigation or inquiry of which such Indemnified Party shall have delivered notice to Parent pursuant to Section 5.6(a) prior to the (6th) anniversary of the Effective Time until such time as such claim is finally resolved (such matter that is not so resolved until after such sixth (6th) anniversary, an "Extended Claim").
(c) Except to the extent required by applicable Law, for a period of six (6) years from the Effective Time (or, with respect to an Extended Claim, until the date of final resolution of such matters), neither Parent nor the Surviving Corporation shall take any action so as to amend, modify, limit or repeal the provisions for indemnification of Indemnified Parties contained in the certificates or articles of incorporation or bylaws (or other comparable organizational documents) of the Surviving Corporation and its Subsidiaries (which as of the Effective Time shall be no less favorable to such individuals than those maintained by the Company and its Subsidiaries on the date hereof) in such a manner as would adversely affect the rights of any Indemnified Party to be indemnified by such corporations in respect of their serving in such capacities prior to the Effective Time. The Surviving Corporation shall honor all of its indemnification obligations existing as of the Effective Time.
(d) For a period of six (6) years after the Effective Time, Parent shall cause the Surviving Corporation to maintain be maintained in effect the current policies of directors’ ' and officers’ ' liability insurance maintained by the Company (provided, the "D&O Policies"); (provided that the Surviving Corporation Parent may substitute therefor policies with a substantially comparable insurer reputable and financially sound carriers of at least the same coverage and amounts containing terms and conditions which that are no less advantageous in any material respect to the insuredIndemnified Parties) with respect to claims arising from or related to facts or events which that occurred at or before the Effective Time; provided, however, that the Surviving Corporation Parent shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 300% of the annual premiums paid as of the date hereof by the Company for such insurance (such 300% amount, the “Current "Maximum Premium”"), and if such premiums for . If such insurance would coverage can only be obtained at any time exceed 300% an annual premium in excess of the Current Maximum Premium, then Parent shall obtain and maintain one or more policies with the Surviving Corporation shall cause to be maintained policies of insurance which, in the Surviving Corporation’s good faith determination, provide the maximum greatest coverage available at for an annual premium equal to 300% the Maximum Premium. Notwithstanding anything to the contrary in this Agreement, Parent or the Surviving Corporation may, at Parent's option, purchase, six-year "tail" prepaid policies on the D&O Policies on terms and conditions no less advantageous to the Indemnified Parties in any material respect to the Indemnified Parties than the D&O Policies (such "tail" policies to continue to provide coverage for any Extended Claim following the sixth (6th) anniversary of the Current Premium; provided, further, Effective Time until final resolution of such Extended Claim). In the event that Parent or the Surviving Corporation purchases such a "tail" policy, Parent and the Surviving Corporation shall maintain such "tail" policy in full force and effect and continue to honor their respective obligations thereunder, in lieu of all other obligations of Parent and the Surviving Corporation under the first sentence of this Section 5.10(d) for so long as such "tail" policy shall be maintained in full force and effect.
(e) The provisions of this Section are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party and each party entitled to insurance coverage under Section 5.10(d), respectively, and his or her heirs and legal representatives, and shall be in addition to, and shall not impair, any other rights an Indemnified Party may satisfy have under the Company Organizational Documents or the Company Subsidiary Organizational Documents, as applicable, or the comparable organization documents of the Surviving Corporation or any of its Subsidiaries, under applicable Law or otherwise. Parent shall ensure that the Surviving Corporation complies with all of its obligations under this Section 7.06(c) by obtaining “tail” insurance policies at the Effective Time that provide substantially similar coverage5.10.
(df) If Parent, In the event that Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent shall cause proper provisions to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 7.06.
(e) 5.10. The obligations of Parent and 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 indemnity and other rights and obligations provided for in under this Section 7.06.
5.10 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 5.10 applies without the express written consent of such affected indemnitee (f) The provisions it being expressly agreed that the indemnitees to whom this Section 5.10 applies shall be third party beneficiaries of this Section 7.06 are (i) intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise5.10).
Appears in 1 contract
Indemnification; D&O Insurance. (a) From In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including without limitation any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the date of this Agreement, or who become prior to the Effective Time through Time, a director or officer of the sixth anniversary thereof, Parent shall, and shall cause Seller or any of its Subsidiaries (the Surviving Corporation to, indemnify and hold harmless any person (an “"Indemnified Party”Parties") who is or was a partyis, or is threatened to be be, made a party, to any threatened, pending party based in whole or completed action, claim, litigation, suit or proceeding, whether civil, criminal, administrative or investigative, whether predicated on foreign, federal, state or local law and whether formal or informal (collectively for purposes of this Section 7.06, “action(s)”), by reason of his status asin part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was, was a director and/or an executive or officer (collectively for purposes of this Section 7.06, “executive(s)”) of the CompanySeller, and/or is any of its Subsidiaries or was serving as an executive officer any of their respective predecessors or director (ii) this Agreement or any of another corporation, partnership, joint venture, employee benefit plan, trust or other similar enterprise affiliated with the Company (any and/or all of which are referred to in this Section 7.06 as an “affiliate”), and as to acts performed in the course of such executive’s duty to the Company and/or to an affiliate, in each case against expenses, fees, costs and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) incurred by or on behalf of an executive in connection with any action (including in connection with the investigation, defense, settlement or appeal of such action) that pertains to a matter existing or occurring at or prior to the Effective Timetransactions contemplated hereby, whether in any case asserted or claimed prior to, at arising before or after the Effective Time, the parties hereto agree to cooperate and use their best efforts to defend against and respond thereto. It is understood and agreed that after the Effective Time, the Buyer shall indemnify and hold harmless, as and to the fullest extent permitted under applicable law. Expenses by law and the charter and by-laws of the relevant entity, each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys’ fees) incurred by any Indemnified Party in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by Parent or the Surviving Corporation attorney's fees and expenses in advance of the final disposition of such actionany claim, suit suit, proceeding or proceeding investigation to each Indemnified Party to the fullest extent permitted by law upon receipt of an any undertaking required by applicable law), judgments, fines and amounts paid in settlement in connection with any such threatened or on behalf actual claim, action, suit, proceeding or investigation. In the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), the Indemnified Parties may retain counsel reasonably satisfactory to them after consultation with the Buyer; provided, however, that (i) the Buyer shall have the right to assume the defense thereof and upon such assumption the Buyer shall not be liable to any Indemnified Party in connection with the defense thereof, except that if the Buyer elects not to assume such defense or counsel for the Indemnified Parties reasonably advises the Indemnified Parties that there are issues which raise conflicts of interest between the Buyer and the Indemnified Parties, the Indemnified Parties may retain counsel reasonably satisfactory to them after consultation with the Buyer, and the Buyer shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties, (ii) the Buyer shall be obligated pursuant to this paragraph to pay for only one counsel for all Indemnified Parties, (iii) the Buyer shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and (iv) the Buyer shall have no obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and nonappealable, that indemnification of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified under this Section 7.06(a). The indemnification rights hereunder shall be in addition to any other rights such Indemnified Party may have under the certificate of incorporation and by-laws of the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise. The certificate of incorporation and by-laws of the Surviving Corporation shall contain, and Parent shall cause the Surviving Corporation to fulfill and honor, provisions with respect to indemnification and exculpation that are at least as favorable to the Indemnified Parties as those set forth in the Company Charter and Company By-laws as of the date of this Agreement, 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 of the Indemnified Partiescontemplated hereby is prohibited by applicable law. The parties agree that the provisions relating to exoneration of directors and officers and the rights to indemnification (including provisions relating to advances of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to matters occurring through the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, that all rights to indemnification in respect of any action pending or asserted or claim made within such period shall continue until the disposition of such action or resolution of such claim.
(b) Any Indemnified Party wishing to claim indemnification under this Section 7.06(a) shall promptly notify Parent 5.11 upon learning of any such claim, action, suit, proceeding or investigationinvestigation shall notify the Buyer thereof, but provided that the failure to so notify shall not relieve Parent affect the obligations of the Buyer under this Section 5.11 except to the extent such failure to notify materially prejudices the Buyer. The Seller's obligations under this Section 5.11 shall continue in full force and effect for a period of six (6) years from the Effective Time, provided, however, that all rights to indemnification in respect of any liability it may have claim asserted or made within such period shall continue until the final disposition of such claim.
(b) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the indemnification obligations of the Seller pursuant to such Indemnified Party if such failure does not materially prejudice Parentthe provisions of the Restated Articles of Organization and the Bylaws of the Seller as in effect immediately prior to the Effective Time.
(c) For a period of six (6) years after the Effective Time, Parent the Buyer shall cause the Surviving Corporation to maintain (to the extent available in the market) in effect the current policies of a directors’ ' and officers’ ' liability insurance maintained policy covering those persons who are currently covered by the Company Seller's directors' and officers' liability insurance policy (provided, a copy of which has been heretofore delivered to the Buyer) with coverage in amount and scope at least as favorable as the Seller's existing coverage (which coverage may be an endorsement extending the period in which claims may be made under such existing policy); provided that in no event shall the Buyer or the Surviving Corporation may substitute therefor policies with a substantially comparable insurer be required to expend per year under this Section 5.11(c) more than an aggregate 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; provided, that the Surviving Corporation shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 300150% of the premiums paid as of the date hereof current annual premium expended by the Company for Seller to provide such insurance (the “Current Premium”), and if such premiums for such insurance would at any time exceed 300% of the 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 equal to 300% of the Current Premium; provided, further, that Parent may satisfy its obligations under this Section 7.06(c) by obtaining “tail” insurance policies at the Effective Time that provide substantially similar coverage.
(d) If Parent, In the Surviving Corporation event the Buyer or any of their respective its successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers transfer or conveys all or substantially all of its properties and assets to any Personperson, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or Surviving Corporation, as the case may be, shall Buyer assume the obligations set forth in this Section 7.065.11.
(e) 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 indemnity and other rights and obligations provided for in this Section 7.06.
(f) The provisions of this Section 7.06 5.11 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnified Party and his or her heirs and representatives, and nothing herein shall affect any indemnification rights that any Indemnified Party and his or her heirs and representatives may have under the Bylaws of the Indemnified Parties, their heirs and their representatives and (ii) in addition to, and not in substitution forSeller or any of its Subsidiaries, any other rights to indemnification or contribution that any such Person may have by contract or otherwiseapplicable law.
Appears in 1 contract
Samples: Merger Agreement (Colonial Gas Co)
Indemnification; D&O Insurance. (a) From In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including without limitation any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time through Time, a director or officer of the sixth anniversary thereof, Parent shall, and shall cause Company or any of its Subsidiaries (the Surviving Corporation to, indemnify and hold harmless any person (an “"Indemnified Party”Parties") who is or was a partyis, or is threatened to be be, made a party, to any threatened, pending party based in whole or completed action, claim, litigation, suit or proceeding, whether civil, criminal, administrative or investigative, whether predicated on foreign, federal, state or local law and whether formal or informal (collectively for purposes of this Section 7.06, “action(s)”), by reason of his status asin part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was, was a director and/or an executive or officer (collectively for purposes of this Section 7.06, “executive(s)”) of the Company, and/or is any of its Subsidiaries or was serving as an executive officer any of their respective predecessors or director (ii) this Agreement or any of another corporationthe transactions contemplated hereby, partnership, joint venture, employee benefit plan, trust whether in any case asserted or other similar enterprise affiliated with the Company (any and/or all of which are referred to in this Section 7.06 as an “affiliate”), and as to acts performed in the course of such executive’s duty to the Company and/or to an affiliate, in each case against expenses, fees, costs and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) incurred by arising before or on behalf of an executive in connection with any action (including in connection with the investigation, defense, settlement or appeal of such action) that pertains to a matter existing or occurring at or prior to after the Effective Time, whether asserted or claimed prior to, at or 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, to the extent, if any, not provided by an existing right of indemnification or other agreement or policy, the Parent shall indemnify and hold harmless, as and to the fullest extent permitted under applicable law. Expenses by law and the charter and by-laws of the relevant entity, each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys’ fees) incurred by any Indemnified Party in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by Parent or the Surviving Corporation attorney's fees and expenses in advance of the final disposition of such actionany claim, suit suit, proceeding or proceeding investigation to each Indemnified Party to the fullest extent permitted by law upon receipt of an any undertaking required by applicable law), judgments, fines and amounts paid in settlement in connection with any such threatened or on behalf actual claim, action, suit, proceeding or investigation. In the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), the Indemnified Parties may retain counsel reasonably satisfactory to them after consultation with the Parent; provided, however, that (i) the Parent shall have the right to assume the defense thereof and upon such assumption the Parent shall not be liable to any Indemnified Party in connection with the defense thereof, except that if the Parent elects not to assume such defense or counsel for the Indemnified Parties reasonably advises the Indemnified Parties that there are issues which raise conflicts of interest between the Parent and the Indemnified Parties, the Indemnified Parties may retain counsel reasonably satisfactory to them after consultation with the Parent, and the Parent shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties, (ii) the Parent shall be obligated pursuant to this paragraph to pay for only one counsel in any jurisdiction for all Indemnified Parties, (iii) the Parent shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and (iv) the Parent shall have no obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and nonappealable, that indemnification of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified under this Section 7.06(a). The indemnification rights hereunder shall be in addition to any other rights such Indemnified Party may have under the certificate of incorporation and by-laws of the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise. The certificate of incorporation and by-laws of the Surviving Corporation shall contain, and Parent shall cause the Surviving Corporation to fulfill and honor, provisions with respect to indemnification and exculpation that are at least as favorable to the Indemnified Parties as those set forth in the Company Charter and Company By-laws as of the date of this Agreement, 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 of the Indemnified Partiescontemplated hereby is prohibited by applicable law. The parties agree that the provisions relating to exoneration of directors and officers and the rights to indemnification (including provisions relating to advances of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to matters occurring through the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, that all rights to indemnification in respect of any action pending or asserted or claim made within such period shall continue until the disposition of such action or resolution of such claim.
(b) Any Indemnified Party wishing to claim indemnification under this Section 7.06(a) shall promptly notify Parent 5.16 upon learning of any such claim, action, suit, proceeding or investigationinvestigation shall notify the Parent thereof, but provided that the failure to so notify shall not relieve affect the obligations of the Parent under this Section 5.16 except to the extent such failure to notify materially prejudices the Parent. The Company's obligations under this Section 5.16(a) shall continue in full force and effect for a period of six (6) years from the Effective Time, provided, however, that all rights to indemnification in respect of any liability it may have claim asserted or made within such period shall continue until the final disposition of such claim.
(b) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the indemnification obligations of the Company pursuant to such Indemnified Party if such failure does not materially prejudice Parentthe provisions of the Articles of Incorporation and the Bylaws of the Company as in effect immediately prior to the Effective Time.
(c) For a period of six (6) years after the Effective Time, the Parent shall cause the Surviving Corporation to maintain (to the extent available in the market) in effect a directors' and officers' liability insurance policy covering those persons who are currently covered by the Company's directors' and officers' liability insurance policy (a copy of which has been heretofore delivered to the Parent) with coverage in amount and scope at least as favorable as the Company's existing coverage (which coverage may be an endorsement extending the period in which claims may be made under such existing policy); provided that in no event shall the Parent or the Surviving Corporation be required to expend per year under this Section 5.16(c) more than an aggregate of 150% of the current policies of directors’ and officers’ liability insurance maintained annual premium expended by the Company (providedto provide such coverage; and, further provided that if the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least premium for such coverage exceeds such amount, the same coverage and amounts containing terms and conditions which are no less advantageous to the insured) with respect to claims arising from facts Parent or events which occurred at or before the Effective Time; provided, that the Surviving Corporation shall not be obligated to make annual premium payments purchase a policy with the greatest coverage available for such insurance to the extent such premiums exceed 300150% of the premiums paid as of the date hereof by the Company for such insurance (the “Current Premium”), and if such premiums for such insurance would at any time exceed 300% of the 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 current annual premium equal to 300% of the Current Premium; provided, further, that Parent may satisfy its obligations under this Section 7.06(c) by obtaining “tail” insurance policies at the Effective Time that provide substantially similar coveragepremium.
(d) If Parent, In the Surviving Corporation event the Parent or any of their respective its successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent or Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 7.065.16.
(e) 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 indemnity and other rights and obligations provided for in this Section 7.06.
(f) The provisions of this Section 7.06 5.16 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnified Party and his or her heirs and representatives, and nothing herein shall affect any indemnification rights that any Indemnified Party and his or her heirs and representatives may have under the Bylaws of the Indemnified Parties, their heirs and their representatives and (ii) in addition to, and not in substitution forCompany or any of its Subsidiaries, any other rights to indemnification or contribution that any such Person may have by contract or otherwiseapplicable law.
Appears in 1 contract
Indemnification; D&O Insurance. (a) From To the Effective Time through fullest extent permitted by applicable law, the sixth anniversary thereof, Parent shall, and Company shall cause the Surviving Corporation to, indemnify and hold harmless any person RGMP and its affiliates, and each of their respective members, managers, directors, officers, employees, counsel, agents, representatives, contractors and affiliates (each such individual or entity to be referred to hereinafter as an “Indemnified PartyPerson”) who is ), from and against any loss, claim, damage or was liability, joint or several, and any action in respect thereof, whether or not involving a party, or is threatened to be made a third party, to any threatenedwhich an Indemnified Person may be subject, pending or completed actioninsofar as such loss, claim, litigationdamage, suit liability or proceedingaction relates to, whether civil, criminal, administrative arises out of or investigative, whether predicated on foreign, federal, state results from any Covered Event (as such term is defined below) or local law and whether formal or informal (collectively for purposes of this Section 7.06, “action(s)”), by reason of his status as, or the fact that he is or was, a director and/or an executive officer (collectively for purposes of this Section 7.06, “executive(s)”) of the Company, and/or is or was serving as an executive officer or director of another corporation, partnership, joint venture, employee benefit plan, trust or other similar enterprise affiliated with the Company (any and/or all of which are referred to in this Section 7.06 as an “affiliate”)alleged Covered Event, and as to acts performed in the course of will reimburse such executive’s duty to the Company and/or to an affiliateIndemnified Person upon request for all expenses (including, in each case against expenseswithout limitation, fees, costs and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) incurred by such Indemnified Person in connection with investigating, defending or on behalf preparing to defend against any such loss, claim, damage, liability or action, as such expenses are incurred or paid. The term “Covered Event” shall mean (a) any action taken, or services performed, by an Indemnified Person, related to or consistent with the terms of an executive this Agreement, or (b) any action taken, or omitted to be taken, by the Company or any of its managers, directors, officers, employees, agents or affiliates, in connection with any action (including matter in connection with the investigation, defense, settlement or appeal of such action) that pertains which an Indemnified Person has been involved pursuant to a matter existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law. Expenses (including reasonable attorneys’ fees) incurred by any Indemnified Party in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by Parent or the Surviving Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified under this Section 7.06(a). The indemnification rights hereunder shall be in addition to any other rights such Indemnified Party may have under the certificate of incorporation and by-laws of the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise. The certificate of incorporation and by-laws of the Surviving Corporation shall contain, and Parent shall cause the Surviving Corporation to fulfill and honor, provisions with respect to indemnification and exculpation that are at least as favorable to the Indemnified Parties as those set forth in the Company Charter and Company By-laws as of the date of this Agreement, 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 of the Indemnified Parties. The parties agree that the provisions relating to exoneration of directors and officers and the rights to indemnification (including provisions relating to advances of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to matters occurring through the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, that all rights the term “Covered Event,” with respect to indemnification in respect an Indemnified Person, shall exclude any loss, claim, damage, liability or expense to the extent determined by the final judgment of any action pending a court of competent jurisdiction to have been caused from the gross negligence, fraud, bad faith or asserted or claim made within such period shall continue until the disposition willful misfeasance of such action Indemnified Person or resolution any affiliate thereof. The Company shall cover the designees of such claim.
(b) Any Indemnified Party wishing to claim indemnification RGMP under Section 7.06(a) shall promptly notify Parent upon learning of any such claim, action, suit, proceeding or investigation, but the failure to so notify shall not relieve Parent of any liability it may have to such Indemnified Party if such failure does not materially prejudice Parent.
(c) For a period of six years after the Effective Time, Parent shall cause the Surviving Corporation to maintain in effect the current policies of directors’ directors and officers’ liability insurance maintained by both during and, while potential liability exists, after the Company (provided, that the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions 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; provided, that the Surviving Corporation shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 300% of the premiums paid as of the date hereof by the Company for such insurance (the “Current Premium”), and if such premiums for such insurance would at any time exceed 300% of the 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 equal to 300% of the Current Premium; provided, further, that Parent may satisfy its obligations under this Section 7.06(c) by obtaining “tail” insurance policies at the Effective Time that provide substantially similar coverage.
(d) If Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 7.06.
(e) 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 indemnity and other rights and obligations provided for in this Section 7.06.
(f) The provisions term of this Section 7.06 are (i) intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives and (ii) Agreement in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have amounts reasonably requested by contract or otherwiseRGMP.
Appears in 1 contract
Samples: Management Agreement (Regnum Corp.)
Indemnification; D&O Insurance. (a) From To the Effective Time through fullest extent permitted by applicable law, the sixth anniversary thereof, Parent shall, and Company shall cause the Surviving Corporation to, indemnify and hold harmless any person ZelnickMedia and its affiliates, and each of their respective members, managers, directors, officers, employees, counsel, agents, representatives, contractors and affiliates (each such individual or entity to be referred to hereinafter as an “Indemnified PartyPerson”) who is ), from and against any loss, claim, damage or was liability, joint or several, and any action in respect thereof, whether or not involving a party, or is threatened to be made a third party, to any threatenedwhich an Indemnified Person may be subject, pending or completed actioninsofar as such loss, claim, litigationdamage, suit liability or proceedingaction relates to, whether civil, criminal, administrative arises out of or investigative, whether predicated on foreign, federal, state results from any Covered Event (as such term is defined below) or local law and whether formal or informal (collectively for purposes of this Section 7.06, “action(s)”), by reason of his status as, or the fact that he is or was, a director and/or an executive officer (collectively for purposes of this Section 7.06, “executive(s)”) of the Company, and/or is or was serving as an executive officer or director of another corporation, partnership, joint venture, employee benefit plan, trust or other similar enterprise affiliated with the Company (any and/or all of which are referred to in this Section 7.06 as an “affiliate”)alleged Covered Event, and as to acts performed in the course of will reimburse such executive’s duty to the Company and/or to an affiliateIndemnified Person upon request for all expenses (including, in each case against expenseswithout limitation, fees, costs and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) incurred by such Indemnified Person in connection with investigating, defending or on behalf preparing to defend against any such loss, claim, damage, liability or action, as such expenses are incurred or paid. The term “Covered Event” shall mean (a) any action taken, or services performed, by an Indemnified Person, related to or consistent with the terms of an executive this Agreement or the Original Agreement, or (b) any action taken, or omitted to be taken, by the Company or any of its managers, directors, officers, employees, agents or affiliates, in connection with any action (including matter in connection with the investigation, defense, settlement or appeal of such action) that pertains which an Indemnified Person has been involved pursuant to a matter existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law. Expenses (including reasonable attorneys’ fees) incurred by any Indemnified Party in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by Parent this Agreement or the Surviving Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified under this Section 7.06(a). The indemnification rights hereunder shall be in addition to any other rights such Indemnified Party may have under the certificate of incorporation and by-laws of the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise. The certificate of incorporation and by-laws of the Surviving Corporation shall contain, and Parent shall cause the Surviving Corporation to fulfill and honor, provisions with respect to indemnification and exculpation that are at least as favorable to the Indemnified Parties as those set forth in the Company Charter and Company By-laws as of the date of this Original Agreement, 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 of the Indemnified Parties. The parties agree that the provisions relating to exoneration of directors and officers and the rights to indemnification (including provisions relating to advances of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to matters occurring through the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, that all rights the term “Covered Event,” with respect to indemnification in respect an Indemnified Person, shall exclude any loss, claim, damage, liability or expense to the extent determined by the final judgment of any action pending a court of competent jurisdiction to have been caused from the gross negligence, fraud, bad faith or asserted or claim made within such period shall continue until the disposition willful misfeasance of such action Indemnified Person or resolution any affiliate thereof. The Company shall cover the designees of such claim.
(b) Any Indemnified Party wishing to claim indemnification ZelnickMedia under Section 7.06(a) shall promptly notify Parent upon learning of any such claim, action, suit, proceeding or investigation, but the failure to so notify shall not relieve Parent of any liability it may have to such Indemnified Party if such failure does not materially prejudice Parent.
(c) For a period of six years after the Effective Time, Parent shall cause the Surviving Corporation to maintain in effect the current policies of directors’ directors and officers’ liability insurance maintained by both during and, while potential liability exists, after the Company (provided, that the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions 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; provided, that the Surviving Corporation shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 300% term of the premiums paid as of the date hereof Agreement in amounts reasonably requested by the Company for such insurance (the “Current Premium”), and if such premiums for such insurance would at any time exceed 300% of the 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 equal to 300% of the Current Premium; provided, further, that Parent may satisfy its obligations under this Section 7.06(c) by obtaining “tail” insurance policies at the Effective Time that provide substantially similar coverageZelnickMedia.
(d) If Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 7.06.
(e) 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 indemnity and other rights and obligations provided for in this Section 7.06.
(f) The provisions of this Section 7.06 are (i) intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Management Agreement (Take Two Interactive Software Inc)
Indemnification; D&O Insurance. (a) From To the Effective Time through fullest extent permitted by applicable law, the sixth anniversary thereof, Parent shall, and Company shall cause the Surviving Corporation to, indemnify and hold harmless any person ZelnickMedia and its affiliates, and each of their respective members, managers, directors, officers, employees, counsel, agents, representatives, contractors and affiliates (each such individual or entity to be referred to hereinafter as an “Indemnified PartyPerson”) who is ), from and against any loss, claim, damage or was liability, joint or several, and any action in respect thereof, whether or not involving a party, or is threatened to be made a third party, to any threatenedwhich an Indemnified Person may be subject, pending or completed actioninsofar as such loss, claim, litigationdamage, suit liability or proceedingaction relates to, whether civil, criminal, administrative arises out of or investigative, whether predicated on foreign, federal, state results from any Covered Event (as such term is defined below) or local law and whether formal or informal (collectively for purposes of this Section 7.06, “action(s)”), by reason of his status as, or the fact that he is or was, a director and/or an executive officer (collectively for purposes of this Section 7.06, “executive(s)”) of the Company, and/or is or was serving as an executive officer or director of another corporation, partnership, joint venture, employee benefit plan, trust or other similar enterprise affiliated with the Company (any and/or all of which are referred to in this Section 7.06 as an “affiliate”)alleged Covered Event, and as to acts performed in the course of will reimburse such executive’s duty to the Company and/or to an affiliateIndemnified Person upon request for all expenses (including, in each case against expenseswithout limitation, fees, costs and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) incurred by such Indemnified Person in connection with investigating, defending or on behalf preparing to defend against any such loss, claim, damage, liability or action, as such expenses are incurred or paid. The term “Covered Event” shall mean (a) any action taken, or services performed, by an Indemnified Person, related to or consistent with the terms of an executive this Agreement, the 2017 Agreement, the 2014 Agreement, the 2011 Agreement or the Original Agreement (the terms “2014 Agreement,” “2011 Agreement” and “Original Agreement” shall have the meanings ascribed in the 2017 Agreement), or (b) any action taken, or omitted to be taken, by the Company or any of its managers, directors, officers, employees, agents or affiliates, in connection with any action (including matter in connection with the investigation, defense, settlement or appeal of such action) that pertains which an Indemnified Person has been involved pursuant to a matter existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law. Expenses (including reasonable attorneys’ fees) incurred by any Indemnified Party in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by Parent or the Surviving Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified under this Section 7.06(a). The indemnification rights hereunder shall be in addition to any other rights such Indemnified Party may have under the certificate of incorporation and by-laws of the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise. The certificate of incorporation and by-laws of the Surviving Corporation shall contain, and Parent shall cause the Surviving Corporation to fulfill and honor, provisions with respect to indemnification and exculpation that are at least as favorable to the Indemnified Parties as those set forth in the Company Charter and Company By-laws as of the date of this Agreement, which provisions shall not be amendedthe 2017 Agreement, repealed the 2014 Agreement, the 2011 Agreement 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 of the Indemnified Parties. The parties agree that the provisions relating to exoneration of directors and officers and the rights to indemnification (including provisions relating to advances of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to matters occurring through the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective TimeOriginal Agreement; provided, that all rights the term “Covered Event,” with respect to indemnification in respect an Indemnified Person, shall exclude any loss, claim, damage, liability or expense to the extent determined by the final judgment of any action pending a court of competent jurisdiction to have been caused from the gross negligence, fraud, bad faith or asserted or claim made within such period shall continue until the disposition willful misfeasance of such action Indemnified Person or resolution any affiliate thereof. The Company shall cover the designees of such claim.
(b) Any Indemnified Party wishing to claim indemnification ZelnickMedia under Section 7.06(a) shall promptly notify Parent upon learning of any such claim, action, suit, proceeding or investigation, but the failure to so notify shall not relieve Parent of any liability it may have to such Indemnified Party if such failure does not materially prejudice Parent.
(c) For a period of six years after the Effective Time, Parent shall cause the Surviving Corporation to maintain in effect the current policies of directors’ and officers’ liability insurance maintained by both during and, while potential liability exists, after the Company (provided, that the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions 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; provided, that the Surviving Corporation shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 300% of the premiums paid as of the date hereof by the Company for such insurance (the “Current Premium”), and if such premiums for such insurance would at any time exceed 300% of the 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 equal to 300% of the Current Premium; provided, further, that Parent may satisfy its obligations under this Section 7.06(c) by obtaining “tail” insurance policies at the Effective Time that provide substantially similar coverage.
(d) If Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 7.06.
(e) 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 indemnity and other rights and obligations provided for in this Section 7.06.
(f) The provisions term of this Section 7.06 are (i) intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives and (ii) Agreement in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have amounts reasonably requested by contract or otherwiseZelnickMedia.
Appears in 1 contract
Samples: Management Agreement (Take Two Interactive Software Inc)
Indemnification; D&O Insurance. (a) From and after the Effective Time through the sixth anniversary thereofTime, Parent shall, and shall cause the Surviving Corporation toto indemnify, indemnify defend and hold harmless any each person (an “Indemnified Party”) who is or was a partynow, or is has been at any time prior to the date hereof or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries (the "Indemnified Parties") from and against all losses, claims, damages, costs and expenses (including attorneys' fees and expenses), liabilities, judgments and, subject to the proviso of this sentence, settlement amounts that are paid or incurred in connection with any pending, threatened to be made a party, to any threatened, pending or completed claim, action, claimsuit, litigation, suit formal or informal proceeding, formal or informal investigation or formal or informal inquiry (whether civil, criminal, administrative or investigative, whether predicated on foreign, federal, state or local law investigative and whether formal or informal (collectively for purposes of this Section 7.06, “action(s)”), by reason of his status as, or the fact that he is or was, a director and/or an executive officer (collectively for purposes of this Section 7.06, “executive(s)”) of the Company, and/or is or was serving as an executive officer or director of another corporation, partnership, joint venture, employee benefit plan, trust or other similar enterprise affiliated with the Company (any and/or all of which are referred to in this Section 7.06 as an “affiliate”), and as to acts performed in the course of such executive’s duty to the Company and/or to an affiliate, in each case against expenses, fees, costs and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) incurred by or on behalf of an executive in connection with any action (including in connection with the investigation, defense, settlement or appeal of such action) that pertains to a matter existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time) that is (i) based on, or arises out of, the fact that such Indemnified Party is or was a director or officer of the Company or any of its Subsidiaries or (ii) based on, or arising out of, or pertaining hereto or the transactions contemplated hereby, in each case under clause (i) or clause (ii) above, to the fullest extent a corporation is permitted under applicable lawLaw to indemnify its own directors or officers, as the case may be; provided, however, that after the Effective Time the Surviving Corporation may elect to provide officers of the Company and its Subsidiaries with the same indemnification as Parent provides to officers of its Subsidiaries with respect to any fact, matter, event or circumstance arising after the Effective Time relating to the matters covered by clause (i) above, such same indemnification to be provided with respect to such fact, matter, event or circumstance in lieu of the indemnification set forth in this Section 6.11; provided, further, that notwithstanding the foregoing proviso, all Indemnified Parties shall continue to be indemnified following the Effective Time under the terms set forth in this Section 6.11 with respect to the matters covered by clause (ii) above. Expenses (including reasonable attorneys’ fees) incurred by Without limiting the foregoing, in the event that any such claim, action, suit, proceeding, investigation or inquiry is brought against any Indemnified Party in defending any civil(whether prior to or after the Effective Time), criminal, administrative or investigative action, suit or proceeding shall be paid by Parent or (A) the Surviving Corporation in advance shall have the right to assume the defense thereof with legal counsel of Parent's choosing and neither Parent nor the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of Surviving Corporation shall be liable to such Indemnified Party to repay for any legal expenses of other counsel or any expenses subsequently incurred by such amount if it shall ultimately be determined Indemnified Party in connection with the defense thereof; provided, however, that such Indemnified Party is not entitled to be indemnified under this Section 7.06(a). The indemnification rights hereunder shall be in addition to any other rights such Indemnified Party may have under the certificate of incorporation and by-laws of the Surviving Corporation or any employ counsel of its Subsidiaries, under the DGCL or otherwise. The certificate of incorporation and by-laws of the Surviving Corporation shall containown choosing, and Parent shall cause the Surviving Corporation to fulfill pay such Indemnified Party for reasonable legal expenses of such counsel, if under applicable standards of professional conduct the counsel selected by Parent may be reasonably determined by counsel consulted by such Indemnified Party, to have a conflict representing the Surviving Corporation and honor, provisions with respect to indemnification and exculpation that are at least as favorable to the Indemnified Parties as those set forth Party in the Company Charter and Company By-laws as conduct of the date defense of this Agreementan action, which provisions and (B) the Surviving Corporation shall not be amended, repealed or otherwise modified liable for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder settlement of any of the Indemnified Partiesclaim effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned). The parties agree that the provisions relating to exoneration of directors and officers and the rights to indemnification (including provisions relating to advances of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to matters occurring through the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, that all rights to indemnification in respect of any action pending or asserted or claim made within such period shall continue until the disposition of such action or resolution of such claim.
(b) Any Indemnified Party wishing to claim obtain indemnification under this Section 7.06(a) 6.11(a), upon learning of any claim, action, suit, proceeding, investigation or inquiry, shall promptly notify Parent upon learning thereof; provided, however, the failure of any Indemnified Party to give such notice shall not waive any rights of the Indemnified Party under this Section 6.11 except to the extent that the rights of the Surviving Corporation or Parent are actually materially prejudiced thereby). In the event the Surviving Corporation does not assume the defense of an action in accordance with this Section 6.11(a), (w) the Indemnified Parties as a group seeking indemnification with respect to the same or a substantially related matter may retain only one law firm with respect to such matter except to the extent that under applicable standards of professional conduct, such counsel would have a conflict representing such Indemnified Party and any other Indemnified Party or Indemnified Parties, (x) Parent shall cause the Surviving Corporation to pay all expenses of the disposition of any such claim, action, suit, proceeding proceeding, investigation or investigation, but inquiry to each Indemnified Party to the failure to so notify shall not relieve Parent of any liability it may have full extent permitted by applicable Law promptly after statements therefor are received and otherwise advance to such Indemnified Party upon request reimbursement of documented expenses reasonably incurred, in either case to the extent not prohibited by the WBCL; provided, however, that the person to whom expenses are advanced provides an undertaking if required by applicable Law to repay such failure does advance if it is ultimately determined that such person is not materially prejudice Parententitled to indemnification, (y) Parent shall cause the Surviving Corporation to pay all reasonable fees and expenses of such counsel for the Indemnified Parties and all costs and expenses of the Indemnified Parties in connection with seeking and obtaining indemnification from the Surviving Corporation, from time to time, in each case within three (3) Business Days of the receipt by Parent of a statement from such counsel for the Indemnified Parties and (z) Parent shall cause the Surviving Corporation to use reasonable best efforts to assist in the defense of any such matter. In the event of any dispute as to whether an Indemnified Party's conduct complies with the standards set forth under applicable Law and as applicable, the Company Organizational Documents and the Company Subsidiary Organizational Documents, a determination shall be made by independent counsel reasonably acceptable to the Surviving Corporation and the Indemnified Party. Without limiting the foregoing, to the extent that any Indemnified Party is, by reason of the fact that such Indemnified Party is or was a director or officer of the Company or any of its Subsidiaries, a witness in any claim, action, suit, proceeding, investigation or inquiry to which such Indemnified Party is not a party, such Indemnified Party shall be indemnified and held harmless against all costs and expenses in connection therewith.
(b) The Surviving Corporation shall not enter into any settlement of any claim in which the Surviving Corporation is jointly liable with an Indemnified Party (or would be if joined in such claim) unless such settlement provides for a full and final release of all claims asserted against such Indemnified Party.
(c) Except to the extent required by Applicable Law, neither Parent nor the Surviving Corporation shall take any action so as to amend, modify, limit or repeal the provisions for indemnification of Indemnified Parties contained in the certificates or articles of incorporation or bylaws (or other comparable organizational documents) of the Surviving Corporation and its Subsidiaries (which as of the Effective Time shall be no less favorable to such individuals than those maintained by the Company and its Subsidiaries on the date hereof) in such a manner as would adversely affect the rights of any Indemnified Party to be indemnified by such corporations in respect of their serving in such capacities prior to the Effective Time. The Surviving Corporation shall honor all of its indemnification obligations existing as of the Effective Time.
(d) For a period of six (6) years after the Effective Time, Parent shall cause the Surviving Corporation to maintain be maintained in effect the current policies of directors’ ' and officers’ ' liability insurance maintained by the Company (provided, provided that the Surviving Corporation Parent may substitute therefor "tail" or other policies with a substantially comparable insurer reputable and financially sound carriers of at least the same coverage and amounts containing terms and conditions which that are no less advantageous to in the insuredaggregate) with respect to claims arising from or related to facts or events which that occurred at or before the Effective Time; provided, however, that the Surviving Corporation Parent shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 300% of the annual premiums paid as of the date hereof by the Company for such insurance (such 300% amount, the “Current "Maximum Premium”"), and if such premiums for . If such insurance would coverage can only be obtained at any time exceed 300% an annual premium in excess of the Current Maximum Premium, then Parent shall obtain and maintain one or more policies with the Surviving Corporation shall cause to be maintained policies of insurance which, in the Surviving Corporation’s good faith determination, provide the maximum greatest coverage available at for an annual premium equal to 300% the Maximum Premium.
(e) The provisions of this Section are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party and each party entitled to insurance coverage under Section 6.11(d), respectively, and his or her heirs and legal representatives, and shall be in addition to, and shall not impair, any other rights an Indemnified Party may have under the Company Organizational Documents or the Company Subsidiary Organizational Documents, as applicable, or the comparable organization documents of the Current Premium; providedSurviving Corporation or any of its Subsidiaries, further, under applicable Law or otherwise. Parent shall ensure that Parent may satisfy the Surviving Corporation complies with all of its obligations under this Section 7.06(c) by obtaining “tail” insurance policies at the Effective Time that provide substantially similar coverage6.11.
(df) If Parent, In the event that Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent shall cause proper provisions to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 7.06.
(e) 6.11. The obligations of Parent and 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 indemnity and other rights and obligations provided for in under this Section 7.06.
6.11 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 6.11 applies without the express written consent of such affected indemnitee (f) The provisions it being expressly agreed that the indemnitees to whom this Section 6.11 applies shall be Third Party beneficiaries of this Section 7.06 are (i) intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise6.11).
Appears in 1 contract
Samples: Merger Agreement (American Medical Security Group Inc)
Indemnification; D&O Insurance. The Company shall promptly indemnify you to the maximum extent permitted by law against all liabilities, losses, damages Xx. Xxxxx Xxxxxxxx and expenses (a) From the Effective Time through the sixth anniversary thereofincluding but not limited to reasonable attorneys’, Parent shallaccountants’, and shall cause the Surviving Corporation to, indemnify and hold harmless any person (an “Indemnified Party”) who is or was a party, or is threatened to be made a party, to any threatened, pending or completed action, claim, litigation, suit or proceeding, whether civil, criminal, administrative or investigative, whether predicated on foreign, federal, state or local law and whether formal or informal (collectively for purposes of this Section 7.06, “action(s)”), by reason of his status as, or the fact that he is or was, a director and/or an executive officer (collectively for purposes of this Section 7.06, “executive(s)”) of the Company, and/or is or was serving as an executive officer or director of another corporation, partnership, joint venture, employee benefit plan, trust investment or other similar enterprise affiliated with the Company (any and/or all of which are referred to in this Section 7.06 as an “affiliate”), advisor and as to acts performed in the course of such executive’s duty to the Company and/or to an affiliate, in each case against expenses, expert witness fees, costs ) actually and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) reasonably incurred by or on behalf of an executive you in connection with any action (including in connection with the investigationclaim or proceeding arising out of, defense, settlement or appeal of such action) that pertains to a matter existing or occurring at or prior to the Effective Time, whether asserted or claimed prior relating to, at or after your services for the Effective Time, to the fullest extent permitted under applicable lawCompany. Expenses (including reasonable attorneys’ fees) incurred by any Indemnified Party that you incur in defending any a threatened or pending civil, criminal, administrative or investigative action, suit or proceeding shall be paid by Parent or the Surviving Corporation Company in advance of the final disposition of such action, suit or proceeding upon within thirty (30) days after receipt by the Company of (a) a statement or statements from you requesting such advance or advances from time to time, and (b) an undertaking by you or on your behalf of such Indemnified Party to repay such amount if or amounts, only if, and to the extent that, it shall ultimately be determined that such Indemnified Party is you are not entitled to be indemnified by the Company as authorized by this Agreement or otherwise. Advances shall be unsecured and interest-free. In the event that final disposition of any such action, suit or proceeding determines that you are not entitled to be indemnified for expenses for which you have received payment or reimbursement, you shall repay such amount to the Company within ninety (90) days of your receipt of an accounting in writing from the Company of the amount owing. Promptly after your receipt of notice of the commencement of any action, suit or proceeding, you shall notify the Company of the commencement thereof. Your failure to promptly notify the Company of the commencement of the action, suit or proceeding, or your request for indemnification, will not relieve the Company from any liability that it may have to you hereunder, except to the extent the Company is prejudiced in its defense of such action, suit or proceeding as a result of such failure. In the event the Company is obligated to pay your expenses with respect to an action, suit or proceeding, as provided in this Agreement, the Company shall be entitled to assume the defense of such action, suit or proceeding, with counsel reasonably acceptable to you, upon the delivery to you of written notice of the Company’s election to do so. After delivery of such notice, your approval of such counsel and the retention of such counsel by the Company, the Company will not be liable to you for any fees of counsel that you subsequently incur with respect to the same action, suit or proceeding, provided that (1) you shall have the right to employ your own counsel in such action, suit or proceeding at your expense and (2) if (i) your employment of counsel has been previously authorized in writing by the Company, (ii) counsel to the Company or you shall have reasonably concluded that there may be a conflict of interest or position, or reasonably believes that a conflict is likely to arise, on any significant issue between the Company and you in the conduct of any such defense or (iii) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding, then the fees and expenses of your counsel shall be at the Company’s expense, except as otherwise expressly provided by this Agreement. The Company shall not be entitled, without your consent, to assume the defense of any claim brought by or in the right of the Company or as to which counsel for the Company or you shall have reasonably made the conclusion provided for in clause (ii) above. Your rights under this Section 7.06(a). The indemnification rights hereunder paragraph shall apply both during your employment and at all times thereafter, and shall be in addition to any other rights such Indemnified Party may have under the certificate of incorporation and by-laws of the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise. The certificate of incorporation and by-laws of the Surviving Corporation shall contain, and Parent shall cause the Surviving Corporation to fulfill and honor, provisions with respect to indemnification and exculpation that are at least as favorable to the Indemnified Parties as those set forth in the Company Charter and Company By-laws as of the date of this Agreement, 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 of the Indemnified Parties. The parties agree that the provisions relating to exoneration of directors and officers and the rights to indemnification (including provisions relating to advances of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to matters occurring through the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, that all rights to indemnification in respect of any action pending or asserted or claim made within such period shall continue until the disposition of such action or resolution of such claim.
(b) Any Indemnified Party wishing to claim indemnification under Section 7.06(a) shall promptly notify Parent upon learning of any such claim, action, suit, proceeding or investigation, but the failure to so notify shall not relieve Parent of any liability it may have to such Indemnified Party if such failure does not materially prejudice Parent.
(c) For a period of six years after the Effective Time, Parent 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 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; provided, that the Surviving Corporation shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 300% of the premiums paid as of the date hereof by the Company for such insurance (the “Current Premium”), and if such premiums for such insurance would at any time exceed 300% of the 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 equal to 300% of the Current Premium; provided, further, that Parent may satisfy its obligations under this Section 7.06(c) by obtaining “tail” insurance policies at the Effective Time that provide substantially similar coverage.
(d) If Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 7.06.
(e) 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 indemnity and other rights and obligations provided for in this Section 7.06.
(f) The provisions of this Section 7.06 are (i) intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives and (ii) in addition to, and not in substitution forlieu of, any other rights to indemnification or contribution that any such Person advancement you may have by contract under the Company’s organizational documents or insurance policies, or under applicable law or otherwise.. In addition, during your employment and for six years thereafter, you shall be entitled to directors’ and officers’ insurance coverage that is no less favorable to you in any respect than the coverage then enjoyed by any other individual with respect to his or her service as a director or officer during the Retention Period. Xx. Xxxxx Xxxxxxxx
Appears in 1 contract
Samples: Key Employee Retention Agreement (Gleacher & Company, Inc.)
Indemnification; D&O Insurance. (a) From 12.1 If the Effective Time through the sixth anniversary thereof, Parent shall, and shall cause the Surviving Corporation to, indemnify and hold harmless any person (an “Indemnified Party”) who Executive is or was made a party, or is threatened to be made a party, or reasonably anticipates being made a party, to any threatenedactual, pending threatened or completed reasonably anticipated action, claim, litigation, suit or proceeding, whether civil, criminal, administrative or administrative, investigative, whether predicated on foreignappellate, federal, state or local law and whether formal or informal (collectively for purposes of this Section 7.06, a “action(s)Proceeding”), ) by reason of his status as, or the fact that he is or waswas a director, a director and/or an executive officer (collectively for purposes of this Section 7.06officer, “executive(s)”) member, employee, agent, manager, trustee, consultant or representative of the Company, and/or Company or any of its Affiliates or is or was serving as an executive officer or director at the request of another corporation, partnership, joint venture, employee benefit plan, trust or other similar enterprise affiliated with the Company (or any and/or all of which are referred to in this Section 7.06 as an “affiliate”)its Affiliates, and as to acts performed in the course of such executive’s duty to the Company and/or to an affiliate, in each case against expenses, fees, costs and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) incurred by or on behalf of an executive in connection with his service hereunder, as a director, officer, member, employee, agent, manager, trustee, consultant or representative of another person or entity, or if any action (including in connection with the claim, demand, request, investigation, defensedispute, settlement controversy, threat, discovery request, or appeal request for testimony or information (a “Claim”) is made, is threatened to be made, or is reasonably anticipated to be made, that arises out of such action) that pertains to a matter existing or occurring at or prior relates to the Effective TimeExecutive’s service in any of the foregoing capacities, whether asserted or claimed prior to, at or after then the Effective Time, Executive shall promptly be indemnified and held harmless by the Company to the fullest extent permitted or authorized by the corporate governance documents of the Company, or if greater, by applicable law, against any and all costs, expenses, liabilities and losses (including, without limitation, attorneys’ and other professional fees and charges, judgments, interest, expenses of investigation, penalties, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) incurred or suffered by the Executive in connection therewith or in connection with seeking to enforce his rights under this Section 12.1, and, notwithstanding anything herein to the contrary, such indemnification shall survive the termination of this Agreement and shall continue as to the Executive even if he has ceased to be a director, officer, member, employee, agent, manager, trustee, consultant or representative of the Company or other person or entity and shall inure to the benefit of his heirs, executors and administrators. The Executive shall be entitled to prompt advancement by the Company of any and all costs and expenses (including, without limitation, attorneys’ and other professional fees and charges) incurred by him in connection with any such Proceeding or Claim, or in connection with seeking to enforce his rights under this Section 12.1, any such advancement to be made within fifteen (15) days after the Executive gives written notice to the Company, supported by reasonable documentation, requesting such advancement. Such notice shall include an undertaking by the Executive to repay the amount advanced if he is ultimately determined not to be entitled to indemnification against such costs and expenses. Nothing in this Agreement shall operate to limit or extinguish any right to indemnification, advancement of expenses, or contribution that the Executive would otherwise have (including, without limitation, by agreement or under applicable law. Expenses ).
12.2 Neither the failure of the Company (including reasonable attorneys’ feesits Board, independent legal counsel or stockholders) incurred to have made a determination prior to the commencement of any Proceeding or Claim concerning payment of amounts claimed by any Indemnified Party in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by Parent or the Surviving Corporation in advance Executive under Section 12.1 that indemnification of the final disposition Executive is proper because he has met the applicable standard of such actionconduct, suit or proceeding upon receipt of an undertaking nor a determination by or on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified under this Section 7.06(a). The indemnification rights hereunder shall be in addition to any other rights such Indemnified Party may have under the certificate of incorporation and by-laws of the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise. The certificate of incorporation and by-laws of the Surviving Corporation shall contain, and Parent shall cause the Surviving Corporation to fulfill and honor, provisions with respect to indemnification and exculpation that are at least as favorable to the Indemnified Parties as those set forth in the Company Charter and Company By-laws as of the date of this Agreement(including its Board, which provisions shall not be amended, repealed independent legal counsel 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 of the Indemnified Parties. The parties agree stockholders) that the provisions relating to exoneration Executive has not met such applicable standard of directors and officers and conduct, shall create a presumption that the rights to indemnification (including provisions relating to advances Executive has not met the applicable standard of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to matters occurring through the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, that all rights to indemnification in respect of any action pending or asserted or claim made within such period shall continue until the disposition of such action or resolution of such claimconduct.
(b) Any Indemnified Party wishing to claim indemnification under Section 7.06(a) shall promptly notify Parent upon learning of any such claim, action, suit, proceeding or investigation, but the failure to so notify shall not relieve Parent of any liability it may have to such Indemnified Party if such failure does not materially prejudice Parent.
(c) For a period of six years after the Effective Time, Parent shall cause the Surviving Corporation to maintain in effect the current policies of 12.3 A directors’ and officers’ liability insurance maintained by policy (or policies) shall be kept in place, during the Company (provided, that the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of Employment Term and for at least six (6) years thereafter, providing coverage to the same coverage and amounts containing terms and conditions which are Executive that is no less advantageous favorable to the insured) him in any respect (including, without limitation, with respect to claims arising from facts or events which occurred at or before the Effective Time; providedscope, that the Surviving Corporation shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 300% of the premiums paid as of the date hereof by the Company for such insurance (the “Current Premium”)exclusions, amounts, and if such premiums for such insurance would at any time exceed 300% of deductibles) than the Current Premium, coverage then the Surviving Corporation shall cause being provided 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 the Current Premium; provided, further, that Parent may satisfy its obligations under this Section 7.06(c) by obtaining “tail” insurance policies at the Effective Time that provide substantially similar coverage.
(d) If Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person present or former senior executive or director of PXRE Group and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 7.06Affiliates.
(e) 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 indemnity and other rights and obligations provided for in this Section 7.06.
(f) The provisions of this Section 7.06 are (i) intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Indemnification; D&O Insurance. (ai) From the Effective Time through the sixth anniversary thereof, Parent shall, and The Company shall cause the Surviving Corporation to, indemnify and hold harmless any person (an “Indemnified Party”) who harmless, to the fullest extent permitted by the Certificate and Bylaws and applicable law as it presently exists or may hereafter be amended, and upon request advance expenses to Executive in the event he is or was a party, party or is or was threatened to be made a party, party to any threatened, pending or completed action, claimsuit, litigation, suit or proceeding, whether civil, criminal, administrative or investigative, whether predicated on foreign, federal, state or local law and whether formal or informal investigative (collectively for purposes of this Section 7.06, a “action(s)Proceeding”), by reason of his status as, or the fact that he is or was, a director and/or an executive officer (collectively for purposes of this Section 7.06, “executive(s)”) of the Company, and/or is or was serving as an executive officer or director of another corporation, partnership, joint venture, employee benefit plan, trust or other similar enterprise affiliated with employment by the Company or any of its subsidiaries or affiliates, against expenses (any and/or all of which are referred to in this Section 7.06 as an “affiliate”including counsel fees), judgments, fines and as to acts performed amounts paid in the course of such executive’s duty to the Company and/or to an affiliate, in each case against expenses, fees, costs settlement actually and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) reasonably incurred by or on behalf of an executive in connection with any action Executive.
(including in connection with the investigation, defense, settlement or appeal of such actionii) that pertains to a matter existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, The Company shall to the fullest extent permitted under not prohibited by applicable law. Expenses law pay the expenses (including reasonable attorneys’ fees) incurred by any Indemnified Party Executive in defending any civilProceeding in advance of its final disposition, criminalprovided, administrative or investigative actionhowever, suit or proceeding shall be paid that, to the extent required by Parent or the Surviving Corporation law, such payment of expenses in advance of the final disposition of such action, suit or proceeding the Proceeding shall be made only upon receipt of an undertaking by or on behalf of such Indemnified Party Executive to repay such amount all amounts advanced if it shall should be ultimately be determined that such Indemnified Party Executive is not entitled to be indemnified under this Section 7.06(a). 10(c) or otherwise.
(iii) The indemnification rights hereunder conferred on Executive by this Section 10(c) shall not be in addition to exclusive of (and shall not limit or be secondary to) any other rights such Indemnified Party which Executive may have or hereafter acquire under the Indemnification Agreement, dated , 2021, by and between Executive and the Company (as successor to Coupang, LLC), any statute, any provision of the Company’s certificate of incorporation and by-laws or Company’s bylaws, any agreement, any vote of stockholders or disinterested directors or otherwise (including any indemnification or insurance separate from the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise. The certificate of incorporation and by-laws of the Surviving Corporation shall contain, and Parent shall cause the Surviving Corporation to fulfill and honor, provisions with respect Company).
(iv) Any right to indemnification and exculpation that are at least as favorable or to the Indemnified Parties as those set forth in the Company Charter and Company By-laws as advancement of the date expenses of this Agreement, which provisions Executive arising hereunder shall not be amended, repealed eliminated or otherwise modified for a period impaired by an amendment to or termination of six years from this Agreement after the Effective Time in any manner that would adversely affect the rights thereunder of any occurrence of the Indemnified Parties. The parties agree act or omission that is the provisions relating to exoneration subject of directors and officers and the rights to civil, criminal, administrative or investigative Proceeding for which indemnification (including provisions relating to advances or advancement of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to matters occurring through the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, that all rights to indemnification in respect of any action pending or asserted or claim made within such period shall continue until the disposition of such action or resolution of such claimis sought.
(b) Any Indemnified Party wishing to claim indemnification under Section 7.06(a) shall promptly notify Parent upon learning of any such claim, action, suit, proceeding or investigation, but the failure to so notify shall not relieve Parent of any liability it may have to such Indemnified Party if such failure does not materially prejudice Parent.
(c) For a period of six years after the Effective Time, Parent 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 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; provided, that the Surviving Corporation shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 300% of the premiums paid as of the date hereof by the Company for such insurance (the “Current Premium”), and if such premiums for such insurance would at any time exceed 300% of the 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 equal to 300% of the Current Premium; provided, further, that Parent may satisfy its obligations under this Section 7.06(c) by obtaining “tail” insurance policies at the Effective Time that provide substantially similar coverage.
(d) If Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 7.06.
(e) 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 indemnity and other rights and obligations provided for in this Section 7.06.
(f) The provisions of this Section 7.06 are (i) intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Employment Agreement (Coupang, Inc.)
Indemnification; D&O Insurance. (a) From 12.1 If the Effective Time through the sixth anniversary thereof, Parent shall, and shall cause the Surviving Corporation to, indemnify and hold harmless any person (an “Indemnified Party”) who Executive is or was made a party, or is threatened to be made a party, or reasonably anticipates being made a party, to any threatenedactual, pending threatened or completed reasonably anticipated action, claim, litigation, suit or proceeding, whether civil, criminal, administrative or administrative, investigative, whether predicated on foreignappellate, federal, state or local law and whether formal or informal (collectively for purposes of this Section 7.06, a “action(s)Proceeding”), ) by reason of his status as, or the fact that he is or waswas a director, a director and/or an executive officer (collectively for purposes of this Section 7.06officer, “executive(s)”) member, employee, agent, manager, trustee, consultant or representative of the Company, and/or Company or any of its Affiliates or is or was serving as an executive officer or director at the request of another corporation, partnership, joint venture, employee benefit plan, trust or other similar enterprise affiliated with the Company (or any and/or all of which are referred to in this Section 7.06 as an “affiliate”)its Affiliates, and as to acts performed in the course of such executive’s duty to the Company and/or to an affiliate, in each case against expenses, fees, costs and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) incurred by or on behalf of an executive in connection with his service hereunder, as a director, officer, member, employee, agent, manager, trustee, consultant or representative of another person or entity, or if any action (including in connection with the claim, demand, request, investigation, defensedispute, settlement controversy, threat, discovery request, or appeal request for testimony or information (a “Claim”) is made, is threatened to be made, or is reasonably anticipated to be made, that arises out of such action) that pertains to a matter existing or occurring at or prior relates to the Effective TimeExecutive’s service in any of the foregoing capacities, whether asserted or claimed prior to, at or after then the Effective Time, Executive shall promptly be indemnified and held harmless by the Company to the fullest extent permitted or authorized by the corporate governance documents of the Company, or if greater, by applicable law, against any and all costs, expenses, liabilities and losses (including, without limitation, attorneys' and other professional fees and charges, judgments, interest, expenses of investigation, penalties, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) incurred or suffered by the Executive in connection therewith or in connection with seeking to enforce his rights under this Section 12.1, and, notwithstanding anything herein to the contrary, such indemnification shall survive the termination of this Agreement and shall continue as to the Executive even if he has ceased to be a director, officer, member, employee, agent, manager, trustee, consultant or representative of the Company or other person or entity and shall inure to the benefit of his heirs, executors and administrators. The Executive shall be entitled to prompt advancement by the Company of any and all costs and expenses (including, without limitation, attorneys’ and other professional fees and charges) incurred by him in connection with any such Proceeding or Claim, or in connection with seeking to enforce his rights under this Section 12.1, any such advancement to be made within fifteen (15) days after the Executive gives written notice to the Company, supported by reasonable documentation, requesting such advancement. Such notice shall include an undertaking by the Executive to repay the amount advanced if he is ultimately determined not to be entitled to indemnification against such costs and expenses. Nothing in this Agreement shall operate to limit or extinguish any right to indemnification, advancement of expenses, or contribution that the Executive would otherwise have (including, without limitation, by agreement or under applicable law. Expenses ).
12.2 Neither the failure of the Company (including reasonable attorneys’ feesits Board, independent legal counsel or stockholders) incurred to have made a determination prior to the commencement of any Proceeding or Claim concerning payment of amounts claimed by any Indemnified Party in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by Parent or the Surviving Corporation in advance Executive under Section 12.1 that indemnification of the final disposition Executive is proper because he has met the applicable standard of such actionconduct, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified under this Section 7.06(a). The indemnification rights hereunder shall be in addition to any other rights such Indemnified Party may have under the certificate of incorporation and by-laws of the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise. The certificate of incorporation and by-laws of the Surviving Corporation shall contain, and Parent shall cause the Surviving Corporation to fulfill and honor, provisions with respect to indemnification and exculpation that are at least as favorable to the Indemnified Parties as those set forth in the Company Charter and Company By-laws as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for nor a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any of the Indemnified Parties. The parties agree that the provisions relating to exoneration of directors and officers and the rights to indemnification (including provisions relating to advances of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to matters occurring through the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, that all rights to indemnification in respect of any action pending or asserted or claim made within such period shall continue until the disposition of such action or resolution of such claim.
(b) Any Indemnified Party wishing to claim indemnification under Section 7.06(a) shall promptly notify Parent upon learning of any such claim, action, suit, proceeding or investigation, but the failure to so notify shall not relieve Parent of any liability it may have to such Indemnified Party if such failure does not materially prejudice Parent.
(c) For a period of six years after the Effective Time, Parent shall cause the Surviving Corporation to maintain in effect the current policies of directors’ and officers’ liability insurance maintained determination by the Company (providedincluding its Board, independent legal counsel or stockholders) that the Surviving Corporation may substitute therefor policies with Executive has not met such applicable standard of conduct, shall create a substantially comparable insurer presumption that the Executive has not met the applicable standard of conduct.
12.3 A directors' and officers' liability insurance policy (or policies) shall be kept in place, during the Employment Term and for at least six (6) years thereafter, providing coverage to the same coverage and amounts containing terms and conditions which are Executive that is no less advantageous favorable to the insured) him in any respect (including, without limitation, with respect to claims arising from facts or events which occurred at or before the Effective Time; providedscope, that the Surviving Corporation shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 300% of the premiums paid as of the date hereof by the Company for such insurance (the “Current Premium”)exclusions, amounts, and if such premiums for such insurance would at any time exceed 300% of deductibles) than the Current Premium, coverage then the Surviving Corporation shall cause being provided 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 the Current Premium; provided, further, that Parent may satisfy its obligations under this Section 7.06(c) by obtaining “tail” insurance policies at the Effective Time that provide substantially similar coverage.
(d) If Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person present or former senior executive or director of PXRE Group and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 7.06Affiliates.
(e) 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 indemnity and other rights and obligations provided for in this Section 7.06.
(f) The provisions of this Section 7.06 are (i) intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Indemnification; D&O Insurance. (a) From 1. In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including without limitation any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time through Time, a director or officer of the sixth anniversary thereof, Parent shall, and shall cause Company or any of its Subsidiaries (the Surviving Corporation to, indemnify and hold harmless any person (an “"Indemnified Party”Parties") who is or was a partyis, or is threatened to be be, made a party, to any threatened, pending party based in whole or completed action, claim, litigation, suit or proceeding, whether civil, criminal, administrative or investigative, whether predicated on foreign, federal, state or local law and whether formal or informal (collectively for purposes of this Section 7.06, “action(s)”), by reason of his status asin part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was, was a director and/or an executive or officer (collectively for purposes of this Section 7.06, “executive(s)”) of the Company, and/or is any of its Subsidiaries or was serving as an executive officer any of their respective predecessors or director (ii) this Agreement or any of another corporationthe transactions contemplated hereby, partnership, joint venture, employee benefit plan, trust whether in any case asserted or other similar enterprise affiliated with the Company (any and/or all of which are referred to in this Section 7.06 as an “affiliate”), and as to acts performed in the course of such executive’s duty to the Company and/or to an affiliate, in each case against expenses, fees, costs and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) incurred by arising before or on behalf of an executive in connection with any action (including in connection with the investigation, defense, settlement or appeal of such action) that pertains to a matter existing or occurring at or prior to after the Effective Time, whether asserted or claimed prior to, at or 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, to the extent, if any, not provided by an existing right of indemnification or other agreement or policy, the Parent shall indemnify and hold harmless, as and to the fullest extent permitted under applicable law. Expenses by law and the charter and by-laws of the relevant entity, each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys’ fees) incurred by any Indemnified Party in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by Parent or the Surviving Corporation attorney's fees and expenses in advance of the final disposition of such actionany claim, suit suit, proceeding or proceeding investigation to each Indemnified Party to the fullest extent permitted by law upon receipt of an any undertaking required by applicable law), judgments, fines and amounts paid in settlement in connection with any such threatened or on behalf actual claim, action, suit, proceeding or investigation. In the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), the Indemnified Parties may retain counsel reasonably satisfactory to them after consultation with the Parent; provided, however, that (i) the Parent shall have the right to assume the defense thereof and upon such assumption the Parent shall not be liable to any Indemnified Party in connection with the defense thereof, except that if the Parent elects not to assume such defense or counsel for the Indemnified Parties reasonably advises the Indemnified Parties that there are issues which raise conflicts of interest between the Parent and the Indemnified Parties, the Indemnified Parties may retain counsel reasonably satisfactory to them after consultation with the Parent, and the Parent shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties, (ii) the Parent shall be obligated pursuant to this paragraph to pay for only one counsel in any jurisdiction for all Indemnified Parties, (iii) the Parent shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and (iv) the Parent shall have no obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and nonappealable, that indemnification of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified under this Section 7.06(a). The indemnification rights hereunder shall be in addition to any other rights such Indemnified Party may have under the certificate of incorporation and by-laws of the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise. The certificate of incorporation and by-laws of the Surviving Corporation shall contain, and Parent shall cause the Surviving Corporation to fulfill and honor, provisions with respect to indemnification and exculpation that are at least as favorable to the Indemnified Parties as those set forth in the Company Charter and Company By-laws as of the date of this Agreement, 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 of the Indemnified Partiescontemplated hereby is prohibited by applicable law. The parties agree that the provisions relating to exoneration of directors and officers and the rights to indemnification (including provisions relating to advances of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to matters occurring through the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, that all rights to indemnification in respect of any action pending or asserted or claim made within such period shall continue until the disposition of such action or resolution of such claim.
(b) Any Indemnified Party wishing to claim indemnification under this Section 7.06(a) shall promptly notify Parent 5.16 upon learning of any such claim, action, suit, proceeding or investigationinvestigation shall notify the Parent thereof, but provided that the failure to so notify shall not relieve affect the obligations of the Parent under this Section 5.16 except to the extent such failure to notify materially prejudices the Parent. The Company's obligations under this Section 5.16(a) shall continue in full force and effect for a period of six (6) years from the Effective Time, provided, however, that all rights to indemnification in respect of any liability it may have to claim asserted or made within such Indemnified Party if period shall continue until the final disposition of such failure does not materially prejudice Parentclaim.
(c) 2. From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the indemnification obligations of the Company pursuant to the provisions of the Articles of Incorporation and the Bylaws of the Company as in effect immediately prior to the Effective Time.
3. For a period of six (6) years after the Effective Time, the Parent shall cause the Surviving Corporation to maintain (to the extent available in the market) in effect a directors' and officers' liability insurance policy covering those persons who are currently covered by the Company's directors' and officers' liability insurance policy (a copy of which has been heretofore delivered to the Parent) with coverage in amount and scope at least as favorable as the Company's existing coverage (which coverage may be an endorsement extending the period in which claims may be made under such existing policy); provided that in no event shall the Parent or the Surviving Corporation be required to expend per year under this Section 5.16(c) more than an aggregate of 150% of the current policies of directors’ and officers’ liability insurance maintained annual premium expended by the Company (providedto provide such coverage; and, further provided that if the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least premium for such coverage exceeds such amount, the same coverage and amounts containing terms and conditions which are no less advantageous to the insured) with respect to claims arising from facts Parent or events which occurred at or before the Effective Time; provided, that the Surviving Corporation shall not be obligated to make annual premium payments purchase a policy with the greatest coverage available for such insurance to the extent such premiums exceed 300150% of the premiums paid as of the date hereof by the Company for such insurance (the “Current Premium”), and if such premiums for such insurance would at any time exceed 300% of the 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 current annual premium equal to 300% of the Current Premium; provided, further, that Parent may satisfy its obligations under this Section 7.06(c) by obtaining “tail” insurance policies at the Effective Time that provide substantially similar coveragepremium.
(d) If Parent, 4. In the Surviving Corporation event the Parent or any of their respective its successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent or Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 7.065.16.
(e) 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 indemnity and other rights and obligations provided for in this Section 7.06.
(f) 5. The provisions of this Section 7.06 5.16 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnified Party and his or her heirs and representatives, and nothing herein shall affect any indemnification rights that any Indemnified Party and his or her heirs and representatives may have under the Bylaws of the Indemnified Parties, their heirs and their representatives and (ii) in addition to, and not in substitution forCompany or any of its Subsidiaries, any other rights to indemnification or contribution that any such Person may have by contract or otherwiseapplicable law.
Appears in 1 contract
Samples: Merger Agreement (Energynorth Inc)
Indemnification; D&O Insurance. (ai) From the Effective Time through the sixth anniversary thereof, Parent shall, and The Company shall cause the Surviving Corporation to, indemnify and hold harmless any person (an “Indemnified Party”) who harmless, to the fullest extent permitted by the Certificate and Bylaws and applicable law as it presently exists or may hereafter be amended, and upon request advance expenses to Executive in the event he is or was a party, party or is or was threatened to be made a party, party to any threatened, pending or completed action, claimsuit, litigation, suit or proceeding, whether civil, criminal, administrative or investigative, whether predicated on foreign, federal, state or local law and whether formal or informal investigative (collectively for purposes of this Section 7.06, a “action(s)Proceeding”), by reason of his status as, or the fact that he is or was, a director and/or an executive officer (collectively for purposes of this Section 7.06, “executive(s)”) of the Company, and/or is or was serving as an executive officer or director of another corporation, partnership, joint venture, employee benefit plan, trust or other similar enterprise affiliated with employment by the Company or any of its subsidiaries or affiliates, against expenses (any and/or all of which are referred to in this Section 7.06 as an “affiliate”including counsel fees), judgments, fines and as to acts performed amounts paid in the course of such executive’s duty to the Company and/or to an affiliate, in each case against expenses, fees, costs settlement actually and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) reasonably incurred by or on behalf of an executive in connection with any action Executive.
(including in connection with the investigation, defense, settlement or appeal of such actionii) that pertains to a matter existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, The Company shall to the fullest extent permitted under not prohibited by applicable law. Expenses law pay the expenses (including reasonable attorneys’ fees) incurred by any Indemnified Party Executive in defending any civilProceeding in advance of its final disposition, criminalprovided, administrative or investigative actionhowever, suit or proceeding shall be paid that, to the extent required by Parent or the Surviving Corporation law, such payment of expenses in advance of the final disposition of such action, suit or proceeding the Proceeding shall be made only upon receipt of an undertaking by or on behalf of such Indemnified Party Executive to repay such amount all amounts advanced if it shall should be ultimately be determined that such Indemnified Party Executive is not entitled to be indemnified under this Section 7.06(a). 10(c) or otherwise.
(iii) The indemnification rights hereunder conferred on Executive by this Section 10(c) shall not be in addition to exclusive of (and shall not limit or be secondary to) any other rights such Indemnified Party which Executive may have or hereafter acquire under the Indemnification Agreement, dated March 16, 2021, by and between Executive and the Company (as successor to Coupang, LLC), any statute, any provision of the Company’s certificate of incorporation and by-laws or Company’s bylaws, any agreement, any vote of stockholders or disinterested directors or otherwise (including any indemnification or insurance separate from the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise. The certificate of incorporation and by-laws of the Surviving Corporation shall contain, and Parent shall cause the Surviving Corporation to fulfill and honor, provisions with respect Company).
(iv) Any right to indemnification and exculpation that are at least as favorable or to the Indemnified Parties as those set forth in the Company Charter and Company By-laws as advancement of the date expenses of this Agreement, which provisions Executive arising hereunder shall not be amended, repealed eliminated or otherwise modified for a period impaired by an amendment to or termination of six years from this Agreement after the Effective Time in any manner that would adversely affect the rights thereunder of any occurrence of the Indemnified Parties. The parties agree act or omission that is the provisions relating to exoneration subject of directors and officers and the rights to civil, criminal, administrative or investigative Proceeding for which indemnification (including provisions relating to advances or advancement of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to matters occurring through the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, that all rights to indemnification in respect of any action pending or asserted or claim made within such period shall continue until the disposition of such action or resolution of such claimis sought.
(b) Any Indemnified Party wishing to claim indemnification under Section 7.06(a) shall promptly notify Parent upon learning of any such claim, action, suit, proceeding or investigation, but the failure to so notify shall not relieve Parent of any liability it may have to such Indemnified Party if such failure does not materially prejudice Parent.
(c) For a period of six years after the Effective Time, Parent 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 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; provided, that the Surviving Corporation shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 300% of the premiums paid as of the date hereof by the Company for such insurance (the “Current Premium”), and if such premiums for such insurance would at any time exceed 300% of the 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 equal to 300% of the Current Premium; provided, further, that Parent may satisfy its obligations under this Section 7.06(c) by obtaining “tail” insurance policies at the Effective Time that provide substantially similar coverage.
(d) If Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 7.06.
(e) 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 indemnity and other rights and obligations provided for in this Section 7.06.
(f) The provisions of this Section 7.06 are (i) intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Employment Agreement (Coupang, Inc.)
Indemnification; D&O Insurance. (a) From and after the Effective Time through the sixth anniversary thereofTime, Parent shall, and shall cause the Surviving Corporation toto indemnify, indemnify defend and hold harmless any each person (an “Indemnified Party”) who is or was a partynow, or is has been at any time prior to the date hereof or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries (the "Indemnified Parties") from and against all losses, claims, damages, costs and expenses (including attorneys' fees and expenses), liabilities, judgments and, subject to the proviso of this sentence, settlement amounts that are paid or incurred in connection with any pending, threatened to be made a party, to any threatened, pending or completed claim, action, claimsuit, litigation, suit formal or informal proceeding, formal or informal investigation or formal or informal inquiry (whether civil, criminal, administrative or investigative, whether predicated on foreign, federal, state or local law investigative and whether formal or informal (collectively for purposes of this Section 7.06, “action(s)”), by reason of his status as, or the fact that he is or was, a director and/or an executive officer (collectively for purposes of this Section 7.06, “executive(s)”) of the Company, and/or is or was serving as an executive officer or director of another corporation, partnership, joint venture, employee benefit plan, trust or other similar enterprise affiliated with the Company (any and/or all of which are referred to in this Section 7.06 as an “affiliate”), and as to acts performed in the course of such executive’s duty to the Company and/or to an affiliate, in each case against expenses, fees, costs and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) incurred by or on behalf of an executive in connection with any action (including in connection with the investigation, defense, settlement or appeal of such action) that pertains to a matter existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time) that is (i) based on, or arises out of, the fact that such Indemnified Party is or was a director or officer of the Company or any of its Subsidiaries or (ii) based on, or arising out of, or pertaining hereto or the transactions contemplated hereby, in each case under clause (i) or clause (ii) above, to the fullest extent a corporation is permitted under applicable law. Expenses (including reasonable attorneys’ fees) incurred by any Indemnified Party in defending any civilLaw to indemnify its own directors or officers, criminalas the case may be; provided, administrative or investigative actionhowever, suit or proceeding shall be paid by Parent or that after the Effective Time the Surviving Corporation in advance may elect to provide officers of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified under this Section 7.06(a). The indemnification rights hereunder shall be in addition to any other rights such Indemnified Party may have under the certificate of incorporation and by-laws of the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise. The certificate of incorporation and by-laws of the Surviving Corporation shall contain, and Parent shall cause the Surviving Corporation to fulfill and honor, provisions with respect to indemnification and exculpation that are at least as favorable to the Indemnified Parties as those set forth in the Company Charter and Company By-laws as of the date of this Agreement, 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 of the Indemnified Parties. The parties agree that the provisions relating to exoneration of directors and officers and the rights to indemnification (including provisions relating to advances of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with the same indemnification as Parent provides to officers of its Subsidiaries with respect to matters occurring through any fact, matter, event or circumstance arising after the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, that all rights to indemnification in respect of any action pending or asserted or claim made within such period shall continue until the disposition of such action or resolution of such claim.
(b) Any Indemnified Party wishing to claim indemnification under Section 7.06(a) shall promptly notify Parent upon learning of any such claim, action, suit, proceeding or investigation, but the failure to so notify shall not relieve Parent of any liability it may have to such Indemnified Party if such failure does not materially prejudice Parent.
(c) For a period of six years after the Effective Time, Parent 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 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 relating to the insuredmatters covered by clause (i) above, such same indemnification to be provided with respect to claims arising from facts such fact, matter, event or events which occurred at or before the Effective Time; provided, that the Surviving Corporation shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 300% circumstance in lieu of the premiums paid as of the date hereof by the Company for such insurance (the “Current Premium”), and if such premiums for such insurance would at any time exceed 300% of the Current Premium, then the Surviving Corporation shall cause to be maintained policies of insurance which, indemnification set forth in the Surviving Corporation’s good faith determination, provide the maximum coverage available at an annual premium equal to 300% of the Current Premiumthis Section 6.11; provided, further, that Parent may satisfy its obligations under this Section 7.06(c) by obtaining “tail” insurance policies at notwithstanding the foregoing proviso, all Indemnified Parties shall continue to be indemnified following the Effective Time that provide substantially similar coverage.
(d) If Parent, under the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or Surviving Corporation, as the case may be, shall assume the obligations terms set forth in this Section 7.06.
(e) 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 indemnity and other rights and obligations provided for in this Section 7.06.
(f) The provisions of this Section 7.06 are (i) intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.Section
Appears in 1 contract
Samples: Merger Agreement
Indemnification; D&O Insurance. (a) From For a period of six years from and after the Second Merger Effective Time through Time, the sixth anniversary thereof, Surviving Company shall (and Parent shall, and shall cause the Surviving Corporation Company to, ) indemnify and hold harmless any person harmless, to the fullest extent permitted under Applicable Law and the Acquired Companies’ respective Governing Documents in effect as of the date of this Agreement, each present and former (an determined as of the Second Merger Effective Time) officer, director or employee of the Acquired Companies, in each case, when acting in such capacity (each, a “D&O Indemnified Party”) who is ), against any costs or was a partyexpenses (including attorneys’ fees), judgments, fines, losses, claims, damages or is threatened to be made a partyliabilities incurred in connection with, arising out of or otherwise related to any threatened, pending or completed action, claim, litigation, suit or proceeding, whether civil, criminal, administrative or investigative, whether predicated on foreign, federal, state or local law and whether formal or informal (collectively for purposes of this Section 7.06, “action(s)”), by reason of his status as, or the fact that he is or was, a director and/or an executive officer (collectively for purposes of this Section 7.06, “executive(s)”) of the Company, and/or is or was serving as an executive officer or director of another corporation, partnership, joint venture, employee benefit plan, trust or other similar enterprise affiliated with the Company (any and/or all of which are referred to in this Section 7.06 as an “affiliate”), and as to acts performed in the course of such executive’s duty to the Company and/or to an affiliateAction, in each case against expensesconnection with, fees, costs and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) incurred by arising out of or on behalf of an executive in connection with any action (including in connection with the investigation, defense, settlement or appeal of such action) that pertains otherwise related to a matter matters existing or occurring at or prior to the Second Merger Effective TimeTime and related to such D&O Indemnified Party having served as an officer, director or employee of the Acquired Companies, whether asserted or claimed prior to, at or after the Second Merger Effective Time, including in connection with (i) the transactions contemplated by this Agreement, and (ii) actions to the fullest extent permitted under applicable law. Expenses (including reasonable attorneys’ fees) incurred by enforce this provision or any other indemnification or advancement right of any D&O Indemnified Party in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by Parent or the Surviving Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified under this Section 7.06(a)Party. The indemnification rights hereunder Surviving Company shall be in addition to any other rights such Indemnified Party may have under the certificate of incorporation and by-laws of the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise. The certificate of incorporation and by-laws of the Surviving Corporation shall contain, (and Parent shall cause the Surviving Corporation Company to) also advance reasonable documented out-of-pocket expenses in connection with any such Action described in the foregoing sentence as incurred to fulfill the fullest extent permitted to do so under applicable Law and honorthe Acquired Companies’ Governing Documents in effect as of the date of this Agreement; provided that any Person to whom expenses are advanced shall, at the time of and as a condition to such advancement, provide a written undertaking to promptly repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification in connection with such Action.
(b) On or prior to the Condition Satisfaction Date, the Company shall purchase a prepaid directors’ and officers’ liability insurance policy or policies (i.e., “tail coverage”) (the “D&O Tail”), which policy or policies shall cover those persons who are currently covered by any Acquired Company’s directors’ and officers’ liability insurance policy or policies on terms with respect to coverage and amount that are no less favorable than those of such policy or policies for an aggregate period of not less than six years from the Closing Date (the “Tail Period”) with respect to claims arising from acts or omissions that occurred at or before the Second Merger Effective Time, including with respect to the transactions contemplated by this Agreement.
(c) During the Tail Period, Parent shall (i) cause the Acquired Companies’ respective Governing Documents to contain provisions with respect to indemnification and exculpation that are at least as from liability no less favorable to the D&O Indemnified Parties as than those set forth in the Company Charter and Company By-laws as of Acquired Companies’ respective Governing Documents on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder of any D&O Indemnified Party except as may be expressly required by Applicable Law, and (ii) cause the Surviving Company, the Acquired Companies and any of the Indemnified Parties. The parties agree that the provisions relating their successors or assigns to exoneration of directors and officers and the rights to indemnification (including provisions relating to advances of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to matters occurring through the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, that honor all rights to indemnification in respect of and exculpation from liabilities pursuant to any action pending or asserted or claim made within such period shall continue until indemnification agreements between the disposition of such action or resolution of such claim.
(b) Any D&O Indemnified Party wishing to claim indemnification under Section 7.06(a) shall promptly notify Parent upon learning of any such claim, action, suit, proceeding or investigation, but the failure to so notify shall not relieve Parent of any liability it may have to such Indemnified Party if such failure does not materially prejudice Parent.
(c) For a period of six years after the Effective Time, Parent shall cause the Surviving Corporation to maintain Parties and Acquired Companies as in effect the current policies of directors’ and officers’ liability insurance maintained by the Company (provided, that the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions 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; provided, that the Surviving Corporation shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 300% of the premiums paid as of on the date hereof by the Company for such insurance (the “Current Premium”), and if such premiums for such insurance would at any time exceed 300% of the 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 equal to 300% of the Current Premium; provided, further, that Parent may satisfy its obligations under this Section 7.06(c) by obtaining “tail” insurance policies at the Effective Time that provide substantially similar coverageAgreement.
(d) If Parent, the Surviving Corporation Company or any of their respective its successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity Person of such consolidation or merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Person, in each case, during the Tail Period, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving CorporationCompany, as the case may be, shall assume all of the obligations set forth in this Section 7.069.06.
(e) The Surviving Corporation rights of the D&O Indemnified Parties under this Section 9.06 are in addition to any rights such D&O Indemnified Parties may have under the Governing Documents of the Acquired Companies, or under any applicable Contracts or Laws, and nothing in this Agreement is intended to, shall pay be construed or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or Contract that is or has been in existence with respect to the Acquired Companies for any of their respective directors, officers or other employees (as incurred) all expenses (including reasonable fees and expenses of counsel) it being understood that an Indemnified Party may incur in enforcing the indemnity and other rights and obligations indemnification provided for in this Section 7.069.06 is not prior to or in substitution of any such claims under such policies).
(f) The terms and provisions of this Section 7.06 9.06 are (i) intended to be for enforceable by any of the benefit of, D&O Indemnified Parties and shall be enforceable bytheir respective heirs and Representatives, each of the Indemnified Parties, their heirs and their representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwisewhom is an intended third-party beneficiary of this Section 9.06.
Appears in 1 contract
Indemnification; D&O Insurance. (a) From and after the Effective Time through the sixth anniversary thereofTime, Parent shall, and shall cause the Surviving Corporation toto indemnify, indemnify defend and hold harmless each person who is now, or has been at any person time prior to the date hereof or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries (an the “Indemnified PartyParties”) who is from and against all losses, claims, damages, costs and expenses (including attorneys’ fees and expenses), liabilities, judgments and, subject to the proviso of this sentence, settlement amounts that are paid or was a partyincurred in connection with any pending, or is threatened to be made a party, to any threatened, pending or completed claim, action, claimsuit, litigation, suit formal or informal proceeding, formal or informal investigation or formal or informal inquiry (whether civil, criminal, administrative or investigative, whether predicated on foreign, federal, state or local law investigative and whether formal or informal (collectively for purposes of this Section 7.06, “action(s)”), by reason of his status as, or the fact that he is or was, a director and/or an executive officer (collectively for purposes of this Section 7.06, “executive(s)”) of the Company, and/or is or was serving as an executive officer or director of another corporation, partnership, joint venture, employee benefit plan, trust or other similar enterprise affiliated with the Company (any and/or all of which are referred to in this Section 7.06 as an “affiliate”), and as to acts performed in the course of such executive’s duty to the Company and/or to an affiliate, in each case against expenses, fees, costs and charges (including reasonable attorneys’ fees and disbursements) (collectively, “Losses”) incurred by or on behalf of an executive in connection with any action (including in connection with the investigation, defense, settlement or appeal of such action) that pertains to a matter existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time) that is (i) based on, or arises out of, the fact that such Indemnified Party is or was a director or officer of the Company or any of its Subsidiaries or (ii) based on, or arising out of, or pertaining hereto or the transactions contemplated hereby, in each case under clause (i) or clause (ii) above, to the fullest extent a corporation is permitted under applicable lawLaw to indemnify its own directors or officers, as the case may be; provided, however, that after the Effective Time the Surviving Corporation may elect to provide officers of the Company and its Subsidiaries with the same indemnification as Parent provides to officers of its Subsidiaries with respect to any fact, matter, event or circumstance arising after the Effective Time relating to the matters covered by clause (i) above, such same indemnification to be provided with respect to such fact, matter, event or circumstance in lieu of the indemnification set forth in this Section 6.11; provided, further, that notwithstanding the foregoing proviso, all Indemnified Parties shall continue to be indemnified following the Effective Time under the terms set forth in this Section 6.11 with respect to the matters covered by clause (ii) above. Expenses (including reasonable attorneys’ fees) incurred by Without limiting the foregoing, in the event that any such claim, action, suit, proceeding, investigation or inquiry is brought against any Indemnified Party in defending any civil(whether prior to or after the Effective Time), criminal, administrative or investigative action, suit or proceeding shall be paid by Parent or (A) the Surviving Corporation in advance shall have the right to assume the defense thereof with legal counsel of Parent’s choosing and neither Parent nor the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of Surviving Corporation shall be liable to such Indemnified Party to repay for any legal expenses of other counsel or any expenses subsequently incurred by such amount if it shall ultimately be determined Indemnified Party in connection with the defense thereof; provided, however, that such Indemnified Party is not entitled to be indemnified under this Section 7.06(a). The indemnification rights hereunder shall be in addition to any other rights such Indemnified Party may have under the certificate of incorporation and by-laws of the Surviving Corporation or any employ counsel of its Subsidiaries, under the DGCL or otherwise. The certificate of incorporation and by-laws of the Surviving Corporation shall containown choosing, and Parent shall cause the Surviving Corporation to fulfill pay such Indemnified Party for reasonable legal expenses of such counsel, if under applicable standards of professional conduct the counsel selected by Parent may be reasonably determined by counsel consulted by such Indemnified Party, to have a conflict representing the Surviving Corporation and honor, provisions with respect to indemnification and exculpation that are at least as favorable to the Indemnified Parties as those set forth Party in the Company Charter and Company By-laws as conduct of the date defense of this Agreementan action, which provisions and (B) the Surviving Corporation shall not be amended, repealed or otherwise modified liable for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder settlement of any of the Indemnified Partiesclaim effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned). The parties agree that the provisions relating to exoneration of directors and officers and the rights to indemnification (including provisions relating to advances of expenses incurred in defense of any action or suit) in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to matters occurring through the Effective Time shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, that all rights to indemnification in respect of any action pending or asserted or claim made within such period shall continue until the disposition of such action or resolution of such claim.
(b) Any Indemnified Party wishing to claim obtain indemnification under this Section 7.06(a) 6.11(a), upon learning of any claim, action, suit, proceeding, investigation or inquiry, shall promptly notify Parent upon learning thereof; provided, however, the failure of any Indemnified Party to give such notice shall not waive any rights of the Indemnified Party under this Section 6.11 except to the extent that the rights of the Surviving Corporation or Parent are actually materially prejudiced thereby). In the event the Surviving Corporation does not assume the defense of an action in accordance with this Section 6.11(a), (w) the Indemnified Parties as a group seeking indemnification with respect to the same or a substantially related matter may retain only one law firm with respect to such matter except to the extent that under applicable standards of professional conduct, such counsel would have a conflict representing such Indemnified Party and any other Indemnified Party or Indemnified Parties, (x) Parent shall cause the Surviving Corporation to pay all expenses of the disposition of any such claim, action, suit, proceeding proceeding, investigation or investigation, but inquiry to each Indemnified Party to the failure to so notify shall not relieve Parent of any liability it may have full extent permitted by applicable Law promptly after statements therefor are received and otherwise advance to such Indemnified Party upon request reimbursement of documented expenses reasonably incurred, in either case to the extent not prohibited by the WBCL; provided, however, that the person to whom expenses are advanced provides an undertaking if required by applicable Law to repay such failure does advance if it is ultimately determined that such person is not materially prejudice Parententitled to indemnification, (y) Parent shall cause the Surviving Corporation to pay all reasonable fees and expenses of such counsel for the Indemnified Parties and all costs and expenses of the Indemnified Parties in connection with seeking and obtaining indemnification from the Surviving Corporation, from time to time, in each case within three (3) Business Days of the receipt by Parent of a statement from such counsel for the Indemnified Parties and (z) Parent shall cause the Surviving Corporation to use reasonable best efforts to assist in the defense of any such matter. In the event of any dispute as to whether an Indemnified Party’s conduct complies with the standards set forth under applicable Law and as applicable, the Company Organizational Documents and the Company Subsidiary Organizational Documents, a determination shall be made by independent counsel reasonably acceptable to the Surviving Corporation and the Indemnified Party. Without limiting the foregoing, to the extent that any Indemnified Party is, by reason of the fact that such Indemnified Party is or was a director or officer of the Company or any of its Subsidiaries, a witness in any claim, action, suit, proceeding, investigation or inquiry to which such Indemnified Party is not a party, such Indemnified Party shall be indemnified and held harmless against all costs and expenses in connection therewith.
(b) The Surviving Corporation shall not enter into any settlement of any claim in which the Surviving Corporation is jointly liable with an Indemnified Party (or would be if joined in such claim) unless such settlement provides for a full and final release of all claims asserted against such Indemnified Party.
(c) Except to the extent required by Applicable Law, neither Parent nor the Surviving Corporation shall take any action so as to amend, modify, limit or repeal the provisions for indemnification of Indemnified Parties contained in the certificates or articles of incorporation or bylaws (or other comparable organizational documents) of the Surviving Corporation and its Subsidiaries (which as of the Effective Time shall be no less favorable to such individuals than those maintained by the Company and its Subsidiaries on the date hereof) in such a manner as would adversely affect the rights of any Indemnified Party to be indemnified by such corporations in respect of their serving in such capacities prior to the Effective Time. The Surviving Corporation shall honor all of its indemnification obligations existing as of the Effective Time.
(d) For a period of six (6) years after the Effective Time, Parent shall cause the Surviving Corporation to maintain be maintained in effect the current policies of directors’ and officers’ liability insurance maintained by the Company (provided, provided that the Surviving Corporation Parent may substitute therefor “tail” or other policies with a substantially comparable insurer reputable and financially sound carriers of at least the same coverage and amounts containing terms and conditions which that are no less advantageous to in the insuredaggregate) with respect to claims arising from or related to facts or events which that occurred at or before the Effective Time; provided, however, that the Surviving Corporation Parent shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 300% of the annual premiums paid as of the date hereof by the Company for such insurance (such 300% amount, the “Current Maximum Premium”“), and if such premiums for . If such insurance would coverage can only be obtained at any time exceed 300% an annual premium in excess of the Current Maximum Premium, then Parent shall obtain and maintain one or more policies with the Surviving Corporation shall cause to be maintained policies of insurance which, in the Surviving Corporation’s good faith determination, provide the maximum greatest coverage available at for an annual premium equal to 300% the Maximum Premium.
(e) The provisions of this Section are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party and each party entitled to insurance coverage under Section 6.11(d), respectively, and his or her heirs and legal representatives, and shall be in addition to, and shall not impair, any other rights an Indemnified Party may have under the Company Organizational Documents or the Company Subsidiary Organizational Documents, as applicable, or the comparable organization documents of the Current Premium; providedSurviving Corporation or any of its Subsidiaries, further, under applicable Law or otherwise. Parent shall ensure that Parent may satisfy the Surviving Corporation complies with all of its obligations under this Section 7.06(c) by obtaining “tail” insurance policies at the Effective Time that provide substantially similar coverage6.11.
(df) If Parent, In the event that Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent shall cause proper provisions to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 7.06.
(e) 6.11. The obligations of Parent and 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 indemnity and other rights and obligations provided for in under this Section 7.06.
6.11 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 6.11 applies without the express written consent of such affected indemnitee (f) The provisions it being expressly agreed that the indemnitees to whom this Section 6.11 applies shall be Third Party beneficiaries of this Section 7.06 are (i) intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise6.11).
Appears in 1 contract
Samples: Merger Agreement (Pacificare Health Systems Inc /De/)
