Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor.
Appears in 2 contracts
Samples: Tax Matters Agreement, Solicitation and Non Disclosure Agreement (Fleetcor Technologies Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its the Company Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transactionterms. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or of any of its the Company Subsidiaries as a director or officer of another Person (the “the Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (x) each the Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined that such person is not entitled to indemnification and (y) the Surviving Company shall cooperate in the defense of any such matter. Without limiting the foregoing, at the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, cause the certificate of incorporation and by-laws of the Surviving Corporation to include provisions for limitation of liabilities of directors and officers, indemnification, advancement of expenses and exculpation of the indemnitees no less favorable to the indemnitees than as set forth in the Company Charter or the Company By-laws in effect on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the indemnitees except as required by applicable Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Gartner Inc), Agreement and Plan of Merger (CEB Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this AgreementAgreement and previously provided to Parent, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transactionterms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, (x) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to indemnification and (y) the Surviving Company shall cooperate in the defense of any such matter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Community Health Systems Inc), Agreement and Plan of Merger (Health Management Associates, Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany employee may have under any agreement or IMS Health Plan, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor through the sixth anniversary of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect date on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after which the Effective TimeTime occurs, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will Corporation shall indemnify and hold harmless each individual who is present (as of the date of this Agreement, or who becomes prior to the Effective Time) and former officer, a director or officer employee of the Company or any of IMS Health and its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrativeadministrative or investigative, regulatory arising out of or investigative pertaining to (including with respect to i) the fact that the Indemnified Party is or was an officer, director, employee, fiduciary or agent of IMS Health or any of its Subsidiaries or (ii) matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Action, (A) each Company Indemnified Party will shall be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company Corporation to the fullest extent permitted under applicable Law within ten (10) Business Days of receipt by the Surviving Company Corporation from the Company Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by applicable Law, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) the Surviving Corporation shall not settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (IMS Health Holdings, Inc.), Agreement and Plan of Merger (Quintiles Transnational Holdings Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany employee may have under any agreement or Xxxxxx Plan, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor through the sixth anniversary of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect date on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after which the Effective TimeTime occurs, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will Corporation shall indemnify and hold harmless each individual who is present (as of the date of this Agreement, or who becomes prior to the Effective Time) and former officer, a director or officer employee of the Company or any of Xxxxxx and its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursementsdisbursements (collectively, “Costs”), incurred in connection with any actual or threatened Action, whether civil, criminal, administrativeadministrative or investigative, regulatory arising out of or investigative pertaining to (including with respect to i) the fact that the Indemnified Party is or was an officer, director, employee, fiduciary or agent of Xxxxxx or any of its Subsidiaries or (ii) matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Action, (A) each Company Indemnified Party will shall be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company Corporation to the fullest extent permitted under applicable Law within ten (10) Business Days of receipt by the Surviving Company Corporation from the Company Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by applicable Law, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) the Surviving Corporation shall not settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ryland Group Inc), Agreement and Plan of Merger (Standard Pacific Corp /De/)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates memorandum of incorporation association or bybye-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, Company Subsidiaries shall continue in full force and effect in accordance with their terms except in (it being agreed that after the case of fraudClosing such rights shall be mandatory rather than permissive, willful breach or an interested party transactionif applicable), and Parent shall cause the Company and the Company Subsidiaries to perform its obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who was prior to or is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its the Company Subsidiaries or who was prior to or is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgmentsJudgments, inquiries, fines, amounts paid in settlement fines and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (x) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) 10 Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the Bermuda Companies Act, the Surviving Company’s memorandum of association or bye-laws (or comparable organizational documents) or any applicable indemnification agreement, to repay such advances if it is ultimately determined by final non-appealable adjudication that such Person is not entitled to indemnification and (y) the Surviving Company shall cooperate in the defense of any such matter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Marubeni Corp /Fi), Agreement and Plan of Merger (Aircastle LTD)
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany director or employee may have under any agreement or Company Plan, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor through the sixth anniversary of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect date on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after which the Effective TimeTime occurs, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers Parent shall, and directors) shall cause the Surviving Company agrees that it will Corporation to, indemnify and hold harmless each individual who is current (as of the date of this Agreement, or who becomes prior to the Effective Time) and each former employee, a agent, officer or director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time(collectively, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), from and against any and all claims, losses, liabilities, damages, judgments, penalties, settlements, inquiries, fines, amounts paid in settlement fines and fees, costs and expenses, including actual attorneys’ fees and disbursementsdisbursements and ERISA excise taxes (collectively, “Costs”) actually or reasonably incurred or suffered in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))investigative, arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer employee, agent, officer, director or director fiduciary of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another PersonSubsidiaries, whether asserted or claimed prior to, at or after the Effective Time, to the same extent provided under the Company Constituent Documents (or, as relevant, those of the applicable Subsidiary of the Company) as at the date hereof. In the event of any such Action, each Company Indemnified Party will shall be entitled to advancement of expenses incurred in the defense of any such Action from Parent or the Surviving Company within ten (10) Business Days of receipt by Corporation to the Surviving Company from same extent provided under the Company Indemnified Party Constituent Documents (or, as relevant, those of the applicable Subsidiary of the Company) as at the date hereof. Notwithstanding anything to the contrary herein (but subject to any superior rights contained in the Company Constituent Documents (or, as relevant, those of the applicable Subsidiary of the Company) or applicable indemnification agreements to which any Acquired Company is a request thereforparty including the contract rights set forth in the Company’s Constituent Documents), prior to making any payment or advance in respect of the indemnification obligations set forth in this Section 5.9, the Person who is requesting such indemnification or advance shall agree to repay such payments or advances if it is ultimately determined that such Person is not entitled to indemnification.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ingredion Inc), Agreement and Plan of Merger (Penford Corp)
Indemnification, Exculpation and Insurance. (a) From and after the Effective Time, Parent agrees shall cause the Surviving Corporation and any successor thereof to, (i) agree subject to applicable Law, to indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director, officer or manager of the Company or any of its Subsidiaries (each, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any Proceeding (whether civil, criminal, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee was a director, officer or manager of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, manager, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, manager, employee, agent, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Proceeding relating in whole or in part to the transactions contemplated by this Agreement), to the fullest extent permitted under applicable Law, and (ii) assume all rights obligations of the Company and such Subsidiaries to indemnification, advancement the Indemnitees in respect of expenses indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates (x) the Company’s certificate of incorporation or and by-laws (or comparable and the organizational documents) and any indemnification or other similar agreements documents of such Subsidiaries as currently in effect as of the Company or any date of its Subsidiaries, in each case this Agreement and (y) the indemnification agreements listed on Schedule 7.7 as in effect on as of the date of this Agreement, which agreements shall survive the consummation of the transactions contemplated by this Agreement and continue in full force and effect in accordance with their terms except in respective terms. Without limiting the case of fraudforegoing, willful breach or an interested party transaction. From Parent, from and after the Effective Time, shall cause the certificate of incorporation and by-laws of the Surviving Corporation and the organizational documents of its Subsidiaries to contain provisions no less favorable to the fullest extent permitted by Law (including Indemnitees with respect to the fullest extent authorized or permitted by any amendments to or replacements limitation of the DGCL adopted after the date liabilities of this Agreement that increase the extent to which a corporation may indemnify its directors, officers and directors) the Surviving Company agrees that it will indemnify managers and hold harmless each individual who is indemnification than are set forth as of the date of this AgreementAgreement in the Company’s certificate of incorporation and by-laws and its Subsidiaries’ organizational documents, which provisions shall not be amended, repealed or who becomes prior to otherwise modified in a manner that would adversely affect such rights thereunder of the Indemnitees. In addition, from and after the Effective Time, a director or officer of Parent shall cause the Company or Surviving Corporation to agree, subject to applicable Law, to advance any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person expenses (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred expenses of legal counsel) of any Indemnitee under this Section 7.7 (including in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect enforcing the indemnity and other obligations referred to matters existing or occurring or alleged to occur at or prior in this Section 7.7) as incurred to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))fullest extent permitted under applicable Law, arising out of or pertaining to the fact provided that the Company Indemnified Party person to whom expenses are advanced provides an undertaking to repay such advances if it is or was an officer or director of the Company or any of its Subsidiaries or ultimately determined that such person is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, each Company Indemnified Party will be not entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request thereforindemnification.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Interline Brands, Inc./De)
Indemnification, Exculpation and Insurance. (a) For a period of six (6) years from the Effective Time, Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (whether asserted or claimed prior to, at or after the Effective Time) now existing in favor of the current or former directors, directors or officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation governing or by-laws (or comparable organizational documents) documents and any indemnification or other similar agreements of the Company or any of its the Company Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in terms, and each of the case Company and the Company Subsidiaries shall perform its obligations thereunder. Without limiting the foregoing, during the period commencing at the Effective Time and ending on the sixth (6th) anniversary of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will Corporation shall indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursementsdisbursements (“Losses”), incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (Time, including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director or officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (x) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days Corporation in accordance with the organizational documents and any indemnification or other similar agreements of receipt the Surviving Corporation as in effect on the date of this Agreement; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company from Corporation’s certificate of incorporation or bylaws (or comparable organizational documents) or any such indemnification or other similar agreements, to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to indemnification and (y) the Company Indemnified Party Surviving Corporation shall reasonably cooperate in the defense of a request thereforany such matter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Carbonite Inc), Agreement and Plan of Merger (Open Text Corp)
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts any director or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of employee may have under the Company and its Subsidiaries as provided in their respective certificates of incorporation Constituent Documents, any agreement or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its SubsidiariesPlan, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From from and after the Effective TimeTime through the sixth (6th) anniversary of the date on which the Effective Time occurs, Parent shall, and shall cause the Surviving Corporation to, indemnify and hold harmless, to the fullest extent permitted by under applicable Law (including and Parent shall also advance expenses as incurred to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreementunder applicable Law, or who becomes prior subject to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”immediately following sentence), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement each present and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an each former officer or director of the Company or any of its Subsidiaries (and each Person who may become an officer or is director of the Company or was serving a Company Subsidiary between the date of this Agreement and the Effective Time) (collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or related to such Indemnified Party’s service as a director, officer or employee of the Company or its Subsidiaries or services performed by such persons at the request of the Company or any of its Subsidiaries as a director at or officer of another Personprior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time. In , including (i) the event Merger and the other transactions contemplated by this Agreement and (ii) actions to enforce this Section 5.9 or any other indemnification or advancement right of any Indemnified Party. Notwithstanding anything to the contrary herein (but subject to any superior rights contained in the Company Constituent Documents (or, as relevant, those of the applicable Subsidiary of the Company) or applicable indemnification agreements to which any Acquired Company is a party), prior to making any advance in respect of the indemnification obligations set forth in this Section 5.9, the Person who is requesting such Action, each Company Indemnified Party will be advance shall agree to repay such advances if it is ultimately determined that such Person is not entitled to advancement indemnification in respect of expenses incurred in the defense of any matter for which such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request thereforadvance was made.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Borgwarner Inc), Agreement and Plan of Merger (Remy International, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) Organization Documents and any indemnification or other similar agreements Contracts of the Company or any of its SubsidiariesCompany Subsidiary, in each case case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in (it being agreed that after the case of fraudClosing such rights shall be mandatory rather than permissive, willful breach or an interested party transactionif applicable), and Parent shall cause the Surviving Corporation and the Company Subsidiaries to perform their respective obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company Corporation agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any Company Subsidiary or who is as of its Subsidiaries the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened ActionClaim, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such ActionClaim covered under this Section 6.09, each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action Claim from Parent; provided, that (i) any Person seeking advancement of expenses shall first provide an undertaking (if and only to the extent required by applicable Law or the Surviving Company within ten Corporation’s Organizational Documents) to the Parent to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to indemnification and (10ii) Business Days of receipt by the Surviving Company from Corporation shall cooperate in good faith in the Company Indemnified Party defense of a request thereforany such matter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Vectren Utility Holdings Inc), Agreement and Plan of Merger
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its the Company Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transactionterms. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements each of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers Parent and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the Cayman Companies Law or the Articles of Association or the Memorandum of Association of the Surviving Company, to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to indemnification. Without limiting the foregoing, in the event that any claim is brought against any Company Indemnified Party, (x) Parent shall have the right to assume or direct any of its Subsidiaries to assume the defense thereof with legal counsel of Parent’s choosing, and if Parent shall assume or direct any of its Subsidiaries to assume the defense, then Parent or such Subsidiary, as applicable, shall not be liable to such Company Indemnified Party for any legal expenses of other counsel or any expenses subsequently incurred by such Company Indemnified Party in connection with the defense thereof; provided, however, that such Company Indemnified Party may employ counsel of its own choosing, and Parent or such Subsidiary, as applicable, shall advance to such Company Indemnified Party reasonable legal expenses of such counsel, if (i) Parent does not timely assume the defense thereof or (ii) under applicable standards of professional conduct, there is an actual or potential conflict of interest between the legal defenses for Parent (or the Subsidiary) and those for the Company Indemnified Party in the conduct of the defense of an action; (y) the Company Indemnified Party shall cooperate with Parent or such Subsidiary, as applicable, in the defense of any such matter; and (z) Parent or such Subsidiary, as applicable, shall not be liable for any settlement of any claim effected without its written consent (such consent not to be unreasonably withheld).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Home Loan Servicing Solutions, Ltd.), Agreement and Plan of Merger (New Residential Investment Corp.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will TopCo shall indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company RockTenn or MWV or any of its Subsidiaries their subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company RockTenn or MWV, as applicable, or any of its Subsidiaries their respective subsidiaries as a director or officer of another Person person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company RockTenn or MWV, as applicable, or any of its Subsidiaries their respective subsidiaries or is or was serving at the request of the Company RockTenn or MWV, as applicable, or any of its Subsidiaries their respective subsidiaries as a director or officer of another Personperson or in respect of any acts or omissions in their capacities as such directors of officers occurring prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the same extent as such Indemnified Parties are indemnified as of the date of this Agreement by RockTenn pursuant to the RockTenn Articles of Incorporation, the By-laws of RockTenn or the governing or organizational documents of any subsidiary of RockTenn, or by MWV pursuant to the MWV Certificate of Incorporation, the By-laws of MWV or the governing organizational documents of any subsidiary of MWV, as applicable, or and any indemnification agreements in existence as of the date of this Agreement. In the event of any such Actionclaim, action, suit or proceeding, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from TopCo to the same extent as such Indemnified Parties are entitled to advance of expenses as of the date of this Agreement by RockTenn pursuant to the RockTenn Articles of Incorporation, the By-laws of RockTenn or the governing or organizational documents of any subsidiary of RockTenn, or by MWV pursuant to the MWV Certificate of Incorporation, the By-laws of MWV or the governing or organizational documents of any subsidiary of MWV, as applicable, and any indemnification agreements in existence as of the date of this Agreement; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the GBCC , the DGCL, the RockTenn Articles of Incorporation or the By-laws of RockTenn, or the MWV Certificate of Incorporation or the By-laws of MWV, as applicable, and any indemnification agreements in existence as of the date of this Agreement, to repay such advances if it is ultimately determined that such person is not entitled to indemnification and (ii) TopCo shall, and shall cause its subsidiaries to, cooperate in the defense of any such matter. In the event that TopCo, MWV Surviving Company within ten or RockTenn Surviving Corporation or any of their respective successors or assigns (10i) Business Days consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of receipt by the 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, TopCo, MWV Surviving Company from and/or RockTenn Surviving Corporation, as applicable, shall cause proper provision to be made so that the successors and assigns of TopCo, MWV Surviving Company Indemnified Party of a request thereforand/or RockTenn Surviving Corporation, as applicable, assume the obligations set forth in this Section 6.4.
Appears in 2 contracts
Samples: Business Combination Agreement (MEADWESTVACO Corp), Business Combination Agreement (Rock-Tenn CO)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transactionterms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, (x) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification and (y) the Surviving Company shall cooperate in the defense of any such matter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Atmi Inc), Agreement and Plan of Merger (Entegris Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany employee may have under any agreement or Company Plan, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor through the sixth (6th) anniversary of the current date on which the Effective Time occurs, Parent shall, and shall cause the Final Surviving Entity to, indemnify and hold harmless each present (as of the Effective Time) and former officer or former directors, officers or employees director of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiariescollectively, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), as applicable against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, disbursements incurred in connection with any actual or threatened Action, whether civil, criminal, administrativeadministrative or investigative, regulatory arising out of or investigative pertaining to (including with respect to i) the fact that the Indemnified Party is or was an officer, director, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company’s certificate of incorporation and bylaws each as at the date hereof (collectively, the “Constituent Documents”). In the event of any such Action, (A) each Company Indemnified Party will shall be entitled to advancement of expenses incurred in the defense of any such Action from Parent or the Final Surviving Company within ten Entity, as applicable, to the fullest extent permitted under applicable Law and the applicable Constituent Documents; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by applicable law or the Constituent Documents, to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to indemnification, (10B) Business Days none of receipt Parent or the Final Surviving Entity shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened Action (and in which indemnification could be sought by the Surviving Company from the Company such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of a request thereforsuch Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) Parent and the Final Surviving Entity shall cooperate in the defense of any such matter. Parent and the Final Surviving Entity shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Isle of Capri Casinos Inc), Agreement and Plan of Merger (Eldorado Resorts, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, the Parent shall, and shall cause the Surviving Company to, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify applicable Legal Requirements, indemnify, defend and hold harmless harmless, and provide advancement of expenses to, each individual Person who is as of the date of this Agreement, now or who becomes prior to the Effective Time, a director or officer of the Company or at any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or time prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))was, arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries (each an "Indemnitee" and, collectively, the "Indemnified Parties") against all losses, claims, damages, costs, expenses, liabilities or judgments or amounts that are paid in settlement of or in connection with any investigation (formal or informal), claim, proceeding or action that is based in whole or in part on, or arises in whole or in part out of, the fact that such Person is or was serving at the request a director or officer of the Company or any of its Subsidiaries as a director Subsidiaries, and pertaining to any matter existing or officer of another Personoccurring, or any acts or omissions occurring, at or prior to the Effective Time, whether asserted or claimed prior to, or at or after after, the Effective Time. In Time (including matters, acts or omissions occurring in connection with (i) the event approval of any or entering into this Agreement or the consummation of the Transactions or (ii) the Options Matters) to the same extent such ActionPersons are entitled to be indemnified, each Company Indemnified Party will be entitled defended, held harmless or have the right to advancement of expenses incurred as of the date of this Agreement by the Company or any of its Subsidiaries pursuant to applicable Legal Requirements, the Company Charter Documents and indemnification agreements of the Company and its Subsidiaries, if any, in existence on the defense date hereof with any directors or officers of any such Action from the Company and its Subsidiaries disclosed on Section 5.14 of the Company Disclosure Letter. The Articles of Association of the Surviving Company within ten (10) Business Days will contain provisions with respect to indemnification and exemption that are at least as favorable to the Indemnified Parties as those contained in the Company Articles of receipt by Association as in effect on the Surviving Company date hereof, which provisions will not be amended, repealed or otherwise modified for a period of seven years from the Company Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Party of a request thereforPersons, unless such modification is required by Legal Requirement.
Appears in 2 contracts
Samples: Iii Agreement and Plan of Merger (Msystems LTD), Agreement and Plan of Merger Agreement and Plan of Merger (M-Systems Flash Disk Pioneers LTD)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) Charter Documents and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, Company Subsidiaries shall continue in full force and effect in accordance with their terms except in (it being agreed that after the case of fraudClosing such rights shall be mandatory rather than permissive, willful breach or an interested party transactionif applicable), and Parent shall cause the Company and the Company Subsidiaries to perform their respective obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who was prior to or is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its the Company Subsidiaries or who was prior to or is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgmentsJudgments, inquiries, fines, amounts paid in settlement fines and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (x) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) 10 Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the Bermuda Companies Act, the Surviving Company’s memorandum of association or bye-laws (or comparable organizational documents) or any applicable indemnification agreement, to repay such advances if it is ultimately determined by final non-appealable adjudication that such Person is not entitled to indemnification or any allegation of fraud or dishonesty is proved and (y) the Surviving Company shall cooperate in the defense of any such matter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Arch Capital Group Ltd.), Agreement and Plan of Merger (Watford Holdings Ltd.)
Indemnification, Exculpation and Insurance. (a) For six (6) years after the Effective Time (the “Indemnity Period”), Parent agrees that all rights to indemnification, reimbursement, advancement of legal fees and expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, directors or officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws bylaws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except (it being agreed that, with respect to the advancement of expenses, after the Closing such rights shall be mandatory rather than permissive, if applicable). Parent shall cause the certificate of incorporation, bylaws or other organizational or governing documents of the Surviving Corporation to contain provisions with respect to indemnification, advancement of expenses and exculpation with respect to matters existing or occurring at or prior to the Effective Time that are no less favorable to the current or former directors and officers of the Company and the Company Subsidiaries than those set forth in the case Company’s Certificate of fraudIncorporation and Bylaws as of the date of this Agreement, willful breach which provisions thereafter until the end of the Indemnity Period shall not be amended, repealed or an interested party transactionotherwise modified in any manner that would adversely affect the rights thereunder of any current or former directors or officers of the Company and the Company Subsidiaries. From Without limiting the foregoing, from and after the Effective Time, to Time until the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements end of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) Indemnity Period, the Surviving Company Corporation agrees that it will indemnify and hold harmless each individual who was prior to or is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its the Company Subsidiaries or who thereafter commences prior to the Effective Timeor, serving at the request of the Company or Company, of any of its Subsidiaries as a director or officer of another Person Joint Venture (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrativeadministrative or investigative, regulatory or investigative (including i) with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), by this Agreement) or (ii) arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director or officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another PersonPerson 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; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company Corporation, subject to any limitation imposed from time to time under applicable Law, within ten (10) 20 Business Days of receipt by the Surviving Company Corporation from the Company Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by a final non-appealable adjudication that such person is not entitled to indemnification.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (DST Systems Inc), Agreement and Plan of Merger (SS&C Technologies Holdings Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time Closing now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their the respective certificates of incorporation or by-laws (or comparable organizational documents) of the Company Subsidiaries and any indemnification or other similar agreements of any of the Company or any of its Subsidiaries, in each case as in effect on the date of this AgreementClosing Date, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transactionterms. From and after the Effective TimeClosing, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company Parent agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective TimeClosing, a director or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective TimeClosing, serving at the request of the Company or any of its the Company Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time Closing (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective TimeClosing, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company Parent within ten (10) Business Days of receipt by the Surviving Company Parent from the Company Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the organizational documents of Parent, to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to indemnification. Without limiting the foregoing, in the event that any claim is brought against any Company Indemnified Party, (x) Parent shall have the right to assume or direct any of its Subsidiaries to assume the defense thereof with legal counsel of Parent’s choosing, and if Parent shall assume or direct any of its Subsidiaries to assume the defense, then Parent or such Subsidiary, as applicable, shall not be liable to such Company Indemnified Party for any legal expenses of other counsel or any expenses subsequently incurred by such Indemnified Party in connection with the defense thereof; provided, however, that such Company Indemnified Party may employ counsel of its own choosing, and Parent or such Subsidiary, as applicable, shall advance to such Company Indemnified Party reasonable legal expenses of such counsel, if (i) Parent does not timely assume the defense thereof or (ii) under applicable standards of professional conduct there is an actual or potential conflict of interest between the legal defenses for Parent (or the Subsidiary) and those for the Company Indemnified Party in the conduct of the defense of an action; (y) the Company Indemnified Party shall cooperate with Parent or such Subsidiary, as applicable, in the defense of any such matter; and (z) Parent or such Subsidiary, as applicable, shall not be liable for any settlement of any claim effected without its written consent (such consent not to be unreasonably withheld).
Appears in 2 contracts
Samples: Share and Asset Purchase Agreement (Home Loan Servicing Solutions, Ltd.), Share and Asset Purchase Agreement (New Residential Investment Corp.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights existing as of the Agreement Date to indemnification, advancement of expenses and exculpation from liabilities Liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or and/or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates memorandum of incorporation association or bybye-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as the Company Subsidiaries in effect on as of the date of this Agreement, shall Agreement Date will continue in full force and effect in accordance with their terms except in terms, and Parent will cause the case of fraudSurviving Company and the Company Subsidiaries to perform their respective obligations thereunder. Without limiting the foregoing, willful breach or an interested party transaction. From from and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who was prior to or is as of the date of this AgreementAgreement Date, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its the Company Subsidiaries or who was prior to or is as of the Agreement Date, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, lossesLiabilities, liabilitiesJudgments, damages, judgments, inquiries, fines, amounts paid in settlement fines and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative Action (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated herebyTransactions)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Action, (x) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) 10 Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the Bermuda Companies Act, the Surviving Company’s memorandum of association or bye-laws (or comparable organizational documents) or any applicable indemnification agreement, to repay such advances if it is ultimately determined by final non-appealable adjudication that such Person is not entitled to indemnification and (y) the Surviving Company will cooperate in the defense of any such matter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Urovant Sciences Ltd.), Agreement and Plan of Merger (Sumitomo Chemical Co., Ltd.)
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany director or employee may have under any agreement or Company Plan, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor through the sixth anniversary of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect date on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after which the Effective TimeTime occurs, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers Parent shall, and directors) shall cause the Surviving Company agrees that it will Corporation to, indemnify and hold harmless each individual who is current (as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement ) and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an each former officer or director of the Company or any of its Subsidiaries (collectively, the “Indemnified Parties”), against any costs or is expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or was serving liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or related to such Indemnified Parties’ service as a director, officer or employee of the Company or its Subsidiaries or services performed by such Persons at the request of the Company or any of its Subsidiaries as a director at or officer of another Personprior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including the transactions contemplated by this Agreement, to the fullest extent provided as of the date hereof in the Company Constituent Documents or contractual arrangements of the Company or its Subsidiaries existing as of the date hereof. In the event of any such Action, each Company Indemnified Party will shall be entitled to advancement of expenses incurred in the defense of any such Action from Parent or the Surviving Company within ten (10) Business Days of receipt by Corporation to the Surviving Company from same extent provided under the Company Constituent Documents (or, as relevant, those of the applicable Subsidiary of the Company) as of the date of this Agreement and any existing contractual arrangements of the Company or its Subsidiaries. Notwithstanding anything to the contrary herein (but subject to any superior rights contained in the Company Constituent Documents (or, as relevant, those of the applicable Subsidiary of the Company) or applicable indemnification agreements to which any Acquired Company is a party), prior to making any payment or advance in respect of the indemnification obligations set forth in this Section 5.9, the Person who is requesting such indemnification or advance shall agree to repay such payments or advances if it is ultimately determined that such Person is not entitled to indemnification. No Indemnified Party shall settle, compromise or consent to the entry of a request thereforany judgment in any threatened or actual Action for which indemnification could be sought by an Indemnified Party hereunder unless Parent consents in writing to such settlement, compromise or consent.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Audience Inc), Agreement and Plan of Merger (Knowles Corp)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will Corporation shall, and T-Mobile shall cause the Surviving Corporation to, indemnify and hold harmless each individual who is as of the date of this Agreementor was, or who becomes prior to the Effective Time, a director or officer of the Company Sprint or any of its Subsidiaries subsidiaries or T-Mobile or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company Sprint or any of its Subsidiaries subsidiaries as a director director, officer or officer employee of another Person person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company Sprint or any of its Subsidiaries subsidiaries or T-Mobile or is or was serving at the request of the Company Sprint or any of its Subsidiaries subsidiaries as a director director, officer or officer employee of another Personperson or in respect of any acts or omissions in their capacities as such directors or officers occurring prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the same extent as such Indemnified Parties are indemnified as of the date of this Agreement by Sprint or T-Mobile (as applicable) pursuant to the Sprint Certificate of Incorporation, the Bylaws of Sprint, the governing organizational documents of any subsidiary of Sprint, the T-Mobile Certificate of Incorporation, the Bylaws of T-Mobile and any indemnification agreements in existence as of the date of this Agreement. In Without limiting the indemnification obligations set forth in the immediately preceding sentence, in the event of any such Actionclaim, action, suit or proceeding, (i) each Company Indemnified Party will be entitled to advancement of costs and expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten Corporation to the same extent as such Indemnified Party is entitled to advancement of expenses as of the date of this Agreement by Sprint or T-Mobile (10as applicable) Business Days pursuant to the Sprint Certificate of receipt Incorporation, the Bylaws of Sprint, the governing or organizational documents of any subsidiary of Sprint, the T-Mobile Certificate of Incorporation, the Bylaws of T-Mobile and any indemnification agreements in existence as of the date of this Agreement; provided, that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL, the Sprint Certificate of Incorporation, the Bylaws of Sprint, the governing organizational documents of any subsidiary of Sprint, the T-Mobile Certificate of Incorporation, the Bylaws of T-Mobile and any indemnification agreements in existence as of the date of this Agreement, to repay such advances if it is ultimately determined that such person is not entitled to indemnification, and (ii) T-Mobile and Sprint (as applicable) shall, and shall cause its subsidiaries to, cooperate in the defense of any such matter. In the event that T-Mobile or the Surviving Company from Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and is not the Company Indemnified Party continuing or surviving corporation or entity of a request thereforsuch consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, T-Mobile and/or the Surviving Corporation, as applicable, shall cause proper provision to be made so that the successors and assigns of T-Mobile and/or the Surviving Corporation, as applicable, assume the obligations set forth in this Section 6.6.
Appears in 2 contracts
Samples: Support Agreement (T-Mobile US, Inc.), Support Agreement (SPRINT Corp)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers Parent shall, and directors) shall cause the Surviving Company agrees that it will to, indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries subsidiaries as a director or officer of another Person person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries subsidiaries as a director or officer of another Personperson or in respect of any acts or omissions in their capacities as such directors of officers occurring prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the same extent as such Indemnified Parties are indemnified as of the date of this Agreement by the Company pursuant to the Company Bye-Laws or the governing or organizational documents of any subsidiary of the Company and any indemnification agreements in existence as of the date of this Agreement. In the event of any such Actionclaim, action, suit or proceeding, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten or Parent to the same extent as such Indemnified Parties are entitled to advancement of expenses as of the date of this Agreement by the Company pursuant to the Company Bye-Laws, the governing or organizational documents of any subsidiary of the Company and any indemnification agreements in existence as of the date of this Agreement; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by Applicable Law, the Company Bye-laws, and any indemnification agreements in existence as of the date of this Agreement, to repay such advances if it is ultimately determined that such person is not entitled to indemnification and (10ii) Business Days Parent shall, and shall cause its subsidiaries to, cooperate in the defense of receipt by any such matter. In the event that Parent or the Surviving Company from or any of their respective successors or assigns (i) consolidates with or merges into any other person and is not the Company Indemnified Party continuing or surviving corporation or entity of a request thereforsuch 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 and/or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent and/or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.4.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (IHS Markit Ltd.), Agreement and Plan of Merger (S&P Global Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany officer, advancement of expenses and exculpation director or employee may have under the Company Constituent Documents or any agreement or Company Plan, from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor through the sixth anniversary of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect date on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after which the Effective TimeTime occurs, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers Parent shall, and directors) shall cause the Surviving Company agrees that it will Corporation to, indemnify and hold harmless each individual who is current (as of the date of this Agreement, or who becomes prior to the Effective Time, a ) and each former officer and director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time(collectively, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), from and against any and all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and fees, costs and expenses, including actual attorneys’ fees and disbursementsdisbursements (collectively, “Costs”) incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))investigative, arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer officer, director or director fiduciary of the Company or any of its Subsidiaries at or is or was serving at prior to the request of the Company or any of its Subsidiaries as a director or officer of another PersonEffective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would be permitted under applicable Law and required under the Company Constituent Documents (or, as relevant, those of the applicable Subsidiary of the Company) as at the date hereof. In the event of any such Action, each Company Indemnified Party will shall be entitled to advancement of expenses incurred in the defense of any such Action from Parent or the Surviving Corporation to the fullest extent that the 49 Company within ten (10) Business Days of receipt by the Surviving Company from would be permitted under applicable Law and the Company Constituent Documents (or, as relevant, those of the applicable Subsidiary of the Company) as at the date hereof, and in accordance with the terms of the indemnification agreements between the Company and each of the directors and officers of the Company. Notwithstanding anything to the contrary herein (but subject to any superior rights contained in the Company Constituent Documents (or, as relevant, those of the applicable Subsidiary of the Company) or applicable indemnification agreements to which any Acquired Company is a party), prior to making any payment or advance in respect of the indemnification obligations set forth in this Section 6.9, the Person who is requesting such indemnification or advance shall agree to repay such payments or advances if it is ultimately determined that such Person is not entitled to indemnification. Subject to any superior rights contained in the Company Constituent Documents (or, as relevant, those of the applicable Subsidiary of the Company) or applicable indemnification agreements to which any Acquired Company is a party, no Indemnified Party shall settle, compromise or consent to the entry of a request thereforany judgment in any threatened or actual Action for which indemnification could be sought by an Indemnified Party hereunder unless Parent consents in writing to such settlement, compromise or consent (which consent shall not be unreasonably withheld, conditioned or delayed).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (I Flow Corp /De/), Agreement and Plan of Merger (Kimberly Clark Corp)
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany employee may have under any agreement or Company Plan, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor through the sixth anniversary of the current date on which the Effective Time occurs, Omron and Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former directorsofficer, officers director or employees employee of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including reasonable attorneys’ fees and disbursementsdisbursements (collectively, “Costs”), incurred in connection with any actual or threatened Action, whether civil, criminal, administrativeadministrative or investigative, regulatory arising out of or investigative pertaining to (including with respect to i) the fact that the Indemnified Party is or was an officer, director or employee of the Company or any of its Subsidiaries or (ii) matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent and in the manner permitted by the DGCL and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Company Indemnified Party will shall be entitled to advancement of expenses incurred in the defense of any such Action from Parent or the Surviving Company within ten (10) Business Days of receipt Corporation to the fullest extent and in the manner permitted by the Surviving Company from DGCL and the Company Charter and Company Bylaws as at the date hereof; provided, that any Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of a request thereforsuch Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Omron Corp /Fi), Agreement and Plan of Merger (Adept Technology Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) Organizational Documents and any indemnification or other similar agreements Contracts of the Company or any of its SubsidiariesCompany Subsidiary, in each case case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in (it being agreed that after the case of fraudClosing such rights shall be mandatory rather than permissive, willful breach or an interested party transactionif applicable), and Parent shall cause the Surviving Corporation and the Company Subsidiaries to perform their respective obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company Corporation agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any Company Subsidiary or who is as of its Subsidiaries the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened ActionClaim, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such ActionClaim covered under this Section 6.09, each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action Claim from Parent; provided that (i) any Person seeking advancement of expenses shall first provide an undertaking, if and only to the extent required by applicable Law or the Surviving Company within ten Corporation’s Organizational Documents, to the Parent, to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to indemnification and (10ii) Business Days of receipt by the Surviving Company from Corporation shall cooperate in good faith in the Company Indemnified Party defense of a request thereforany such matter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Allete Inc), Agreement and Plan of Merger (Allete Inc)
Indemnification, Exculpation and Insurance. (a) From and after the Effective Time, Parent agrees shall cause the Surviving Corporation to (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company or of a Subsidiary of the Company (each, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any claim, suit, action, proceeding or investigation (whether civil, criminal, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee or fiduciary of another person (including any employee benefit plan)), in each case under (A) or (B), at, or at any time prior to, the Effective Time (including any claim, suit, action, proceeding or investigation relating in whole or in part to the transactions contemplated by this Agreement), to the fullest extent permitted under applicable Law and (ii) assume the obligations with respect to all rights to indemnification, advancement of expenses indemnification and exculpation from liabilities liabilities, including advancement of expenses, for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries Indemnitees as provided in their respective certificates the Company Certificate, the Company Bylaws or similar organizational document of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements Subsidiary of the Company or any of its Subsidiaries, indemnification Contract between such Indemnitees and the Company or any such Subsidiary (in each case case, as in effect on the date hereof), without further action, as of this Agreement, the Effective Time and such obligations shall survive the Merger and shall continue in full force and effect in accordance with their terms except in terms. Without limiting the case of fraudforegoing, willful breach or an interested party transaction. From Parent, from and after the Effective Time, shall cause the certificate of incorporation and by-laws of the Surviving Corporation to contain provisions no less favorable to the fullest extent permitted by Law (including Indemnitees with respect to the fullest extent authorized or permitted by any amendments to or replacements limitation of the DGCL adopted after the date liabilities of this Agreement that increase the extent to which a corporation may indemnify its directors and officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is indemnification than are set forth as of the date of this AgreementAgreement in the Company Certificate and the Company Bylaws or the applicable organizational documents of the Company’s Subsidiaries, which provisions shall not be amended, repealed or who becomes prior to otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, from and after the Effective Time, a director or officer of Parent shall, and shall cause the Company or Surviving Corporation to, pay any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person expenses (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred expenses of legal counsel) of any Indemnitee under this Section 5.05 (including in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect enforcing the indemnity and other obligations referred to matters existing or occurring or alleged to occur at or prior in this Section 5.05) as incurred to the Effective Time (including this Agreement and fullest extent permitted under applicable Law, provided that the transactions and actions contemplated hereby)), arising out of or pertaining person to whom expenses are advanced provides an undertaking to repay such advances to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt extent required by the Surviving Company from the Company Indemnified Party of a request thereforapplicable Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ingersoll Rand Co LTD), Agreement and Plan of Merger (Trane Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its the Company Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transactionterms. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements each of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers Parent and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (x) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the Cayman Companies Law or the Articles of Association or the Memorandum of Association of the Surviving Company, to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to indemnification and (y) the Surviving Company and such Company Indemnified Party shall cooperate with each other in the defense of any such matter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (New Residential Investment Corp.), Agreement and Plan of Merger (Home Loan Servicing Solutions, Ltd.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to From the Effective Time now existing in favor Closing Date through the sixth anniversary of the current or former directorsClosing Date, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, Parent shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) cause the Surviving Company agrees that it will to indemnify and hold harmless each individual who is present (as of the date of this AgreementCompany Merger Effective Time) and former officer or director, or who becomes prior including but not limited to the Effective Timemembers of the Conflicts Committee, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of and the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))investigative, arising out of or pertaining to (i) the fact that the Company Indemnified Party is or was an officer officer, director, employee, fiduciary or director agent of the Company or any of its the Company Subsidiaries or is (ii) acts or was serving omissions taken by an Indemnified Party in their capacity as such or taken at the request of the Company or any of its Subsidiaries as a director or officer of another Personthe Company Subsidiaries, whether asserted or claimed prior to, at or after the Company Merger Effective Time, to the fullest extent the Company would have been permitted under applicable Law and the Company Charter and Company Bylaws as in effect at the date hereof. In the event of any such Action, (A) each Company Indemnified Party will shall be entitled to advancement from the Surviving Company, within 10 Business Days of receipt by Parent or the Surviving Company from the Indemnified Party of a request therefor, of expenses incurred in the defense of any Action to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as in effect at the date hereof; provided, that any Person to whom expenses are advanced provides an undertaking to repay such Action from advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Company within ten shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (10and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) Business Days of receipt by the Surviving Company from shall cooperate in the Company Indemnified Party defense of a request thereforany such matter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (InfraREIT, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights existing as of the Agreement Date to indemnification, advancement of expenses and exculpation from liabilities Liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or and/or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) Organizational Documents and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as the Company Subsidiaries in effect on as of the date of this Agreement, shall Agreement Date will continue in full force and effect in accordance with their terms except in terms, and Parent will cause the case of fraudSurviving Company and the Company Subsidiaries to perform their respective obligations thereunder. Without limiting the foregoing, willful breach or an interested party transaction. From from and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers Parent shall, and directors) shall cause the Surviving Company agrees that it will to, indemnify and hold harmless each individual who was prior to or is as of the date of this AgreementAgreement Date, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its the Company Subsidiaries or who was prior to or is as of the Agreement Date, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director director, officer or officer employee of another Person (the “Company Indemnified PartiesPersons”), against all claims, lossesLiabilities, liabilitiesJudgments, damages, judgments, inquiries, fines, amounts paid in settlement fines and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative Action (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated herebyTransactions)), arising out of or pertaining to the fact that the Company Indemnified Party Person is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Action, (i) each Company Indemnified Party Person will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party Person of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the Bermuda Companies Act, the Surviving Company’s Organizational Documents or any applicable indemnification agreement, to repay such advances if it is ultimately determined by final non-appealable adjudication that such Person is not entitled to indemnification and (ii) the Surviving Company will cooperate in the defense of any such matter. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Action, unless such settlement, compromise, consent or termination includes an unconditional release of all of the Company Indemnified Persons (who could have sought indemnification, advancement of expenses or exculpation from Liabilities in connection with such Action) from all liability arising out of such Action.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Myovant Sciences Ltd.), Agreement and Plan of Merger (Myovant Sciences Ltd.)
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany employee may have under any agreement or Company Plan, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor through the sixth anniversary of the current date on which the Effective Time occurs, Parent shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer or former directors, officers or employees director of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against any and all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))investigative, arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer officer, director, fiduciary or director agent of the Company or any of its Subsidiaries at or is or was serving at prior to the request of Effective Time (including in connection with this Agreement and the Company or any of its Subsidiaries as a director or officer of another Persontransactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (i) each Company Indemnified Party will shall be entitled to advancement of expenses incurred in the defense of any such Action from Parent or the Surviving Corporation to the fullest extent permitted under applicable Law and the Company within ten (10) Business Days of receipt Charter and Company Bylaws; provided, that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the Surviving Company from DGCL or the Company Charter or Company Bylaws, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification and (ii) the Surviving Corporation shall not settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of a request thereforsuch Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim (including because the Surviving Corporation reimbursed all monetary damages to the Indemnified Party) or such Indemnified Party otherwise consents (such consent not to be unreasonably withheld, delayed or conditioned).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Continental Building Products, Inc.), Agreement and Plan of Merger (Continental Building Products, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) Parent shall cause the Surviving Company agrees that it will indemnify Corporation to, (i) indemnify, defend and hold harmless each individual who is as of the date of this Agreementharmless, or who becomes prior to the Effective Time, a director or officer all past and present directors and officers of the Company or any of and its Subsidiaries or who thereafter commences prior to the Effective Time(individually, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (an “Indemnified Party” and, collectively, the “Company Indemnified Parties”)) against any costs, against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, expenses (including attorneys’ fees and expenses and disbursements), judgments, fines, losses, claims damages or liabilities incurred in connection with any actual claim, action, suit, proceeding or threatened Actioninvestigation, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))investigative, arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer at or director prior to the Effective Time a director, officer, employee or fiduciary of the Company or any of its Subsidiaries or is or was at or prior to the Effective Time serving at the request of of, or to represent the interest of, the Company or any of its Subsidiaries as a director director, officer, partner, member, trustee, fiduciary, employee or officer agent of another Personany other corporation, partnership, joint venture, limited liability company, trust, employee benefit plan or other enterprise, including any charitable or not-for profit public service organization or trade association whether asserted or claimed prior to, at or after the Effective Time. In Time (including with respect to acts or omissions occurring in connection with this Agreement and the event consummation of any such Actionthe transactions contemplated hereby), each Company Indemnified Party will be entitled to and provide advancement of expenses incurred to the Indemnified Parties in the defense of any such Action from the Surviving Company connection therewith (within ten (10) Business Days 10 days of receipt by Parent or the Surviving Company Corporation from the Company an Indemnified Party of a request therefor), in each case, to the fullest extent that the Company or the Subsidiary for which they were acting in such capacity would have been permitted to indemnify, defend, hold harmless or advance expenses under applicable Law as it presently exists or may hereafter be amended (but, in the case of any such amendment, only to the extent such amendment permits the Surviving Corporation to provide broader indemnification rights or rights of advancement of expenses than such Law permitted the Surviving Corporation to provide prior to such amendment); provided that any person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to indemnification, (ii) without limitation to clause (i), to the fullest extent permitted by applicable Law, include and cause to be maintained in effect in the Surviving Corporation’s (or any successor’s) organizational documents for a period of seven years after the Effective Time, provisions regarding elimination of liability of directors, and indemnification of and advancement of expenses to directors and officers of the Company, no less favorable than those contained in the Company’s Organizational Documents as of the date hereof and (iii) not settle, compromise or consent to the entry of any judgment in any proceeding or threatened Action (and in which indemnification could be sought by an Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Action or such Indemnified Party otherwise consents in writing (not to be unreasonably withheld, conditioned or delayed), and cooperates in the defense of such proceeding or threatened Action. Effective as of and from the Effective Time, the Surviving Corporation expressly assumes, and agrees to perform, the Company’s obligations under those certain Indemnification Agreements by and between the Company and those individuals listed in Section 5.06 of the Disclosure Schedule (collectively, the “Indemnification Agreements”) to the fullest extent permitted by Law, but in no event to any lesser extent than the Company would be required to perform them if the transactions contemplated hereby had not taken place.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Magicjack Vocaltec LTD), Agreement and Plan of Merger (B. Riley Financial, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany officer, advancement of expenses and exculpation director or employee may have under the Company Constituent Documents or any agreement or Company Plan, from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor through the sixth anniversary of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect date on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after which the Effective TimeTime occurs, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers Parent shall, and directors) shall cause the Surviving Company agrees that it will Corporation to, indemnify and hold harmless each individual who is current (as of the date of this Agreement, or who becomes prior to the Effective Time) and each former officer, a director or officer and employee of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time(collectively, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), from and against any and all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and fees, costs and expenses, including actual attorneys’ fees and disbursementsdisbursements (collectively, “Costs”) incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))investigative, arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer officer, director, employee or director fiduciary of the Company or any of its Subsidiaries at or is or was serving at prior to the request of the Company or any of its Subsidiaries as a director or officer of another PersonEffective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would be permitted under applicable Law and required or permitted under the Company Constituent Documents (or, as relevant, those of the applicable Subsidiary of the Company) as at the date hereof. In the event of any such Action, each Company Indemnified Party will shall be entitled to advancement of expenses incurred in the defense of any such Action from Parent or the Surviving Corporation to the fullest extent that the Company within ten would be permitted under applicable Law and the Company Constituent Documents (10or, as relevant, those of the applicable Subsidiary of the Company) Business Days as at the date hereof. Notwithstanding anything to the contrary herein (but subject to any superior rights contained in the Company Constituent Documents (or, as relevant, those of receipt the applicable Subsidiary of the Company) or applicable indemnification agreements to which any Acquired Company is a party), prior to making any payment or advance in respect of the indemnification obligations set forth in this Section 6.11, the Person who is requesting such advance shall provide a written affirmation by such Person of a good faith belief that the criteria for indemnification set forth under applicable Law have been satisfied and a written undertaking by the Person to repay all amounts so paid or reimbursed by Parent and the Surviving Company from Corporation if it is ultimately determined that the Company criteria for indemnification have not been satisfied, in connection with any threatened, pending, or completed civil, criminal, administrative, arbitration or investigative proceeding to which such Person is, or is threatened to be, made a party by reason of the former or present official capacity (as defined in Section 302A.521, subd. 1 of the MBCA) of such Person. No Indemnified Party shall settle, compromise or consent to the entry of a request thereforany judgment in any threatened or actual Action for which indemnification could be sought by an Indemnified Party hereunder unless Parent consents in writing to such settlement, compromise or consent (which consent shall not be unreasonably withheld, conditioned or delayed).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Trustco Holdings, Inc.), Agreement and Plan of Merger (Health Fitness Corp /MN/)
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany employee may have under any agreement or Plan, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor through the sixth anniversary of the current date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former directors, officers officer or employees director of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including reasonable attorneys’ fees and disbursementsdisbursements (collectively, “Costs”), incurred in connection with any actual or threatened Action, whether civil, criminal, administrativeadministrative or investigative, regulatory arising out of or investigative pertaining to (including with respect to i) the fact that the Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries, or (ii) matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Company Indemnified Party will shall be entitled to advancement of expenses incurred in the defense of any such Action from Parent or the Surviving Corporation to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof within ten (10) 10 Business Days of receipt by Parent or the Surviving Company Corporation from the Company Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim and does not include an admission of fault or wrongdoing by any Indemnified Party or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Harbin Electric, Inc), Agreement and Plan of Merger (Harbin Electric, Inc)
Indemnification, Exculpation and Insurance. (a) From and after the Effective Time, Parent agrees and Merger Sub agree that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or each former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a present director or officer of the Company or any Company Subsidiary and each person who served as a director, officer, member, trustee or fiduciary of its Subsidiaries another corporation, partnership, joint venture, trust, pension or who thereafter commences prior to the Effective Time, serving other employee benefit plan or enterprise if such service was at the request or for the benefit of the Company or any of its Subsidiaries as Company Subsidiary (each, together with such person’s heirs, executors or administrators, a director or officer of another Person (the “Company Indemnified PartiesParty”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrativeadministrative or investigative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) as in effect on the date of this Agreement or in any agreement, a true and complete copy of which agreement has been provided by the Company to Parent prior to the date hereof, to which the Company or any of its Subsidiaries is a party, shall survive the Merger and continue in full force and effect in accordance with their terms. For a period of six years from the Effective Time. In , Parent shall, and shall cause the event of any such ActionSurviving Company to, each Company Indemnified Party will be entitled to maintain in effect the exculpation, indemnification and advancement of expenses incurred provisions of the Company’s and any Company Subsidiary’s articles of incorporation and by-laws or other organization documents in effect immediately prior to the defense Effective Time or in any agreement, a true and complete copy of which agreement has been provided by the Company to Parent prior to the date hereof, to which the Company or any of its Subsidiaries is a party, in each case in effect immediately prior to the Effective Time and shall not amend, repeal or otherwise modify any such provisions or the exculpation, indemnification or advancement of expenses provisions of the Surviving Company’s articles of incorporation and by-laws set forth in Exhibit A and Exhibit B in any manner that would adversely affect the rights thereunder of any individual who immediately before the Effective Time was a Company Indemnified Party; provided, however, that all rights to indemnification in respect of any Action pending or asserted or any claim made within such period shall continue until the disposition of such Action from the Surviving Company within ten (10) Business Days or resolution of receipt by the Surviving Company from the Company Indemnified Party of a request thereforsuch claim.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Martin Marietta Materials Inc), Agreement and Plan of Merger (Martin Marietta Materials Inc)
Indemnification, Exculpation and Insurance. (a) From and after the Effective Time, Parent agrees shall, and shall cause the Surviving Corporation to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company or any of its Subsidiaries (each, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any claim, suit, action, proceeding or investigation (whether civil, criminal, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under (A) or (B), at, or at any time prior to, the Effective Time (including any claim, suit, action, proceeding or investigation relating in whole or in part to the transactions contemplated by this Agreement), to the fullest extent permitted under applicable Law, and (ii) assume all rights obligations of the Company and such Subsidiaries to indemnification, advancement the Indemnitees in respect of expenses indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing as provided in favor (x) the Company’s certificate of incorporation and by-laws and the current or former directors, officers or employees organizational documents of such Subsidiaries as currently in effect and (y) the indemnification agreements listed on Section 7.7 of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar Disclosure Schedule, which agreements shall survive the consummation of the Company or any of its Subsidiaries, in each case as in effect on the date of transactions contemplated by this Agreement, shall Agreement and continue in full force and effect in accordance with their terms except in respective terms. Without limiting the case of fraudforegoing, willful breach or an interested party transaction. From Parent, from and after the Effective Time, shall cause the certificate of incorporation and by-laws of the Surviving Corporation to contain provisions no less favorable to the fullest extent permitted by Law (including Indemnitees with respect to the fullest extent authorized or permitted by any amendments to or replacements limitation of the DGCL adopted after the date liabilities of this Agreement that increase the extent to which a corporation may indemnify its directors and officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is indemnification than are set forth as of the date of this AgreementAgreement in the Company’s certificate of incorporation and by-laws, which provisions shall not be amended, repealed or who becomes prior to otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, from and after the Effective Time, a director or officer of Parent shall, and shall cause the Company or and the Surviving Corporation to, pay any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person expenses (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred expenses of legal counsel) of any Indemnitee under this Section 7.7 (including in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect enforcing the indemnity and other obligations referred to matters existing or occurring or alleged to occur at or prior in this Section 7.7) as incurred to the Effective Time (including this Agreement and fullest extent permitted under applicable Law, provided that the transactions and actions contemplated hereby)), arising out of or pertaining person to whom expenses are advanced provides an undertaking to repay such advances to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt extent required by the Surviving Company from the Company Indemnified Party of a request thereforapplicable Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Post Holdings, Inc.), Agreement and Plan of Merger (Michael Foods Group, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will Xxxxxxxxx shall indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company Janus or any of its Subsidiaries subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company Janus or any of its Subsidiaries subsidiaries as a director or officer of another Person person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated herebyTransactions)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company Janus or any of its Subsidiaries subsidiaries or is or was serving at the request of the Company Janus or any of its Subsidiaries subsidiaries as a director or officer of another Personperson or in respect of any acts or omissions in their capacities as such directors of officers occurring prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the same extent as such Indemnified Parties are indemnified as of the date of this Agreement by Janus pursuant to the Janus Certificate of Incorporation, the Bylaws of Janus or the governing or organizational documents of any subsidiary of Janus and any indemnification agreements in existence as of the date of this Agreement. In the event of any such Actionclaim, action, suit or proceeding, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days Corporation or Xxxxxxxxx to the same extent as such Indemnified Parties are entitled to advance of receipt expenses as of the date of this Agreement by Janus pursuant to the Janus Certificate of Incorporation, the Bylaws of Janus or the governing or organizational documents of any subsidiary of Janus; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL, the Janus Certificate of Incorporation or the Bylaws of Janus, and any indemnification agreements in existence as of the date of this Agreement, to repay such advances if it is ultimately determined that such person is not entitled to indemnification and (ii) Xxxxxxxxx shall, and shall cause its subsidiaries to, cooperate in the defense of any such matter. In the event that Xxxxxxxxx or the Surviving Company from Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and is not the Company Indemnified Party continuing or surviving corporation or entity of a request thereforsuch 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, Xxxxxxxxx and/or the Surviving Corporation, as applicable, shall cause proper provision to be made so that the successors and assigns of Xxxxxxxxx and/or the Surviving Corporation, as applicable, assume the obligations set forth in this Section 6.7.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Janus Henderson Group PLC), Agreement and Plan of Merger (Janus Capital Group Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its the Company Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transactionterms. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or of any of its the Company Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (x) each the Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined that such person is not entitled to indemnification and (y) the Surviving Company shall cooperate in the defense of any such matter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (SAVVIS, Inc.), Agreement and Plan of Merger (Centurylink, Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, directors or officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates articles of incorporation or by-laws bylaws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its the Company Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in (it being agreed that after the case of fraudClosing such rights shall be mandatory rather than permissive, willful breach or an interested party transactionif applicable), and Parent shall cause the Company and the Company Subsidiaries to perform its obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director or officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (x) each Company Indemnified Party will be entitled to advancement of reasonable expenses of counsel reasonably selected by the Indemnified Parties, incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) 10 Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking, if any only to the extent required by the MBCA or the Surviving Company’s articles of incorporation or bylaws (or comparable organizational documents) to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to indemnification and (y) the Surviving Company shall cooperate in the defense of any such matter.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) Organization Documents and any indemnification or other similar agreements Contracts of the Company or any of its SubsidiariesCompany Subsidiary, in each case case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in (it being agreed that after the case of fraudClosing such rights shall be mandatory rather than permissive, willful breach or an interested party transactionif applicable), and Parent shall cause the Surviving Corporation and the Company Subsidiaries to perform their respective obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company Corporation agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any Company Subsidiary or who is as of its Subsidiaries the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened ActionClaim, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such ActionClaim covered under this Section 6.09, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action Claim from Parent; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by applicable Law or the Surviving Company within ten Corporation’s Organizational Documents, to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to indemnification and (10ii) Business Days of receipt by the Surviving Company from Corporation shall cooperate in good faith in the Company Indemnified Party defense of a request thereforany such matter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Kansas City Power & Light Co)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates articles of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its the Company Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in (it being agreed that after the case of fraudClosing such rights shall be mandatory rather than permissive, willful breach or an interested party transactionif applicable), and Parent shall cause the Company and the Company Subsidiaries to perform its obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (x) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) 10 Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the MBCA or the Surviving Company’s articles of incorporation or by-laws (or comparable organizational documents), to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to indemnification and (y) the Surviving Company shall cooperate in the defense of any such matter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Life Time Fitness, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany Indemnified Party may have under any agreement or Company Plan, advancement for a period of expenses and exculpation six (6) years from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) Parent shall cause the Surviving Company agrees that it will Corporation to indemnify and hold harmless each individual person who is as of now, or has been at any time prior to the date of this Agreement, hereof or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursementsdisbursements (collectively, incurred in connection with “Costs”), arising out of or relating to any threatened or actual claim, action, suit, proceeding or threatened Actioninvestigation, whether civil, criminal, administrativeadministrative or investigative, regulatory based as a whole or investigative (including with respect to matters existing in part on or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining relating as a whole or in part to the fact that the Company Indemnified Party is or was an officer officer, director, employee, fiduciary or director agent of the Company or any of its Subsidiaries or is a trustee (or was serving the like) of any Company Plan, whether pertaining to any matters existing or occurring at or prior to the request of the Company or any of its Subsidiaries as a director or officer of another Person, Effective Time and whether asserted or claimed prior to, at or after the Effective TimeTime (the “Indemnified Liabilities”), including all Indemnified Liabilities based as a whole or in part on, or arising as a whole or in part out of, or relating to this Agreement, to the fullest extent permitted under applicable Law. In the event of any such Action, each Company Each Indemnified Party will shall be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit, proceeding or investigation from Parent or the Surviving Company Corporation to the fullest extent permitted under applicable Law in effect on the date hereof within ten (10) Business Days of receipt by Parent or the Surviving Company Corporation from the Company Indemnified Party of a request therefortherefore, provided, that any Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Hi Shear Technology Corp)
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the any current or former directors, officers officer or employees of director may have under the Company and its Subsidiaries as provided in their respective certificates of incorporation Charter or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case Bylaws as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after from the Effective Time, to Time through the fullest extent permitted by Law sixth (including to the fullest extent authorized or permitted by any amendments to or replacements 6th) anniversary of the DGCL adopted after date on which the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) Effective Time occurs, the Surviving Company agrees that it will Corporation shall indemnify and hold harmless each individual who is current (as of the date of this Agreement, or who becomes prior to the Effective Time, a ) and each former officer and director or officer of the Company or from and against any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person and all loss and liability suffered and expenses (the “Company Indemnified Parties”including attorneys’ fees), against all claims, losses, liabilities, damages, judgments, inquiries, fines, fines and amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, reasonably incurred by such person in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))investigative, arising out of or pertaining to the fact that the Company Indemnified Party indemnified Person is or was an officer officer, director, employee or director fiduciary of the Company or any of its Subsidiaries at or is or was serving at prior to the request of the Company or any of its Subsidiaries as a director or officer of another PersonEffective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would be permitted under applicable Law and required or permitted under the Company Charter or Company Bylaws (or, as relevant, those of the applicable Subsidiary of the Company) as at the date hereof. In the event of any such Action, each Company Indemnified Party will indemnified Person shall be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Corporation to the fullest extent that the Company within ten would be permitted under applicable Law and the Company Charter or Company Bylaws as at the date hereof. Notwithstanding anything to the contrary herein (10but subject to any superior rights contained in the Company Charter or Company Bylaws (or, as relevant, those of the applicable Subsidiary of the Company) Business Days or applicable indemnification agreements to which the Company or its Subsidiaries, as applicable, is a party), prior to making any payment or advance in respect of receipt the indemnification obligations set forth in this Section 6.8, the Person who is requesting such advance shall provide a written affirmation by such Person of a good faith belief that the criteria for indemnification set forth under applicable Law have been satisfied and a written undertaking by such Person to repay all amounts so paid or reimbursed by the Surviving Company from Corporation, if it is ultimately determined that the criteria for indemnification have not been satisfied in connection with any threatened, pending, or completed civil, criminal, administrative, arbitration or investigative proceeding to which such Person is, or is threatened to be, made a party by reason of the former or present official capacity of such Person. No such indemnified Person shall settle, compromise or consent to the entry of any judgment in any threatened or actual Action for which indemnification could be sought by such indemnified Person hereunder unless Parent consents in writing to such settlement, compromise or consent (which consent shall not be unreasonably withheld, conditioned or delayed). Surviving Corporation agrees to continue and not to repeal or modify, and agree to include, to the extent permitted by applicable Law, in the charter documents for the Surviving Corporation, exculpatory provisions currently existing in the Company Indemnified Party of a request thereforCharter (or their substantial equivalent) eliminating personal liability for the Company’s directors to the extent permissible under the CGCL.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cardiogenesis Corp /CA)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Closing Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will HoldCo shall indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Closing Effective Time, a director or officer of Copper or the Company Copper General Partner or Steel or any of its their Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Closing Effective Time, serving at the request of the Company Copper or Steel, as applicable, or any of its their respective Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, Action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Closing Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of Copper or the Company Copper General Partner or Steel, as applicable, or any of its their respective Subsidiaries or is or was serving at the request of the Company Copper or Steel, as applicable, or any of its their respective Subsidiaries as a director director, officer or officer employee of another PersonPerson or in respect of any acts or omissions in their capacities as such directors, officers or employees occurring prior to the Closing Effective Time, whether asserted or claimed prior to, at or after the Closing Effective Time, to the same extent as such Indemnified Parties are indemnified as of the date of this Agreement by Copper pursuant to the Copper Partnership Agreement or the governing or organizational documents of any Subsidiary of Copper or the Copper General Partner, or by Steel pursuant to the Steel Certificate of Incorporation, the By-laws of Steel or the governing organizational documents of any Subsidiary of Steel, as applicable, or any indemnification agreements in existence as of the date of this Agreement. In the event of any such claim, Action, suit or proceeding, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, Action, suit or proceeding from HoldCo to the Surviving Company within ten (10) Business Days same extent as such Indemnified Parties are entitled to advance of receipt expenses as of the date of this Agreement by Copper pursuant to the Copper Partnership Agreement or the governing or organizational documents of any Subsidiary of Copper or the Copper General Partner, or by Steel pursuant to the Steel Certificate of Incorporation, the By-laws of Steel or the governing or organizational documents of any Subsidiary of Steel, as applicable, and any indemnification agreements in existence as of the date of this Agreement; provided, that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL, the Copper Partnership Agreement or the Certificate of Incorporation or By-laws of the Copper General Partner, or the Steel Certificate of Incorporation or the By-laws of Steel, as applicable, and any indemnification agreements in existence as of the date of this Agreement, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification and (ii) HoldCo shall, and shall cause its Subsidiaries to, cooperate in the defense of any such matter. In the event that HoldCo or Copper Surviving Company from Entity or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the Company Indemnified Party continuing or surviving corporation or entity of a request thereforsuch 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, HoldCo or Copper Surviving Entity, as applicable, shall cause proper provision to be made so that the successors and assigns of HoldCo or Copper Surviving Entity, as applicable, assume the obligations set forth in this Section 8.4.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees Pxxxxx and Mxxxxx Sub agree that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or each former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a present director or officer of the Company or any Company Subsidiary and each person who served as a director, officer, member, trustee or fiduciary of its Subsidiaries another corporation, partnership, joint venture, trust, pension or who thereafter commences prior to the Effective Time, serving other employee benefit plan or enterprise if such service was at the request or for the benefit of the Company or any of its Subsidiaries as Company Subsidiary (each, together with such person’s heirs, executors or administrators, a director or officer of another Person (the “Company Indemnified PartiesParty”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrativeadministrative or investigative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)Transactions), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time as provided in their respective certificates of incorporation or bylaws (or comparable organizational documents) as in effect on the date of this Agreement or in any agreement, a correct and complete copy of which agreement has been provided by the Company to Parent prior to the date hereof, to which the Company or any Company Subsidiary is a party, shall survive the Merger and continue in full force and effect in accordance with their terms. For a period of six years from the Effective Time. In , Parent shall cause the event of any such ActionSurviving Company to maintain in effect the exculpation, each Company Indemnified Party will be entitled to indemnification and advancement of expenses incurred provisions of the Company’s and any Company Subsidiary’s certificate of incorporation and bylaws or other organizational documents in effect immediately prior to the defense Effective Time or in any agreement, a correct and complete copy of which agreement has been provided by the Company to Parent prior to the date hereof, to which the Company or any Company Subsidiary is a party, in each case in effect immediately prior to the Effective Time and not to amend, repeal or otherwise modify any such provisions or the exculpation, indemnification or advancement of expenses provisions of the Surviving Company’s certificate of incorporation and bylaws in any manner that would adversely affect the rights thereunder of any individual who immediately before the Effective Time was a Company Indemnified Party; provided, however, that all rights to indemnification in respect of any Action pending or asserted or any claim made within such period shall continue until the disposition of such Action from the Surviving Company within ten (10) Business Days or resolution of receipt by the Surviving Company from the Company Indemnified Party of a request thereforsuch claim.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Berkeley Lights, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to From the Effective Time now existing in favor through the sixth anniversary of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect date on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after which the Effective TimeTime occurs, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers Parent and directors) the Surviving Company agrees that it will Corporation shall jointly and severally indemnify and hold harmless each individual person who is as of now, or has been at any time prior to the date of this Agreementhereof, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”"COVERED PERSONS"), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and reasonable fees, costs costs, and expenses, including reasonable attorneys’ ' fees and disbursementsdisbursements (collectively, "COSTS"), incurred in connection with any actual claim, action, suit, proceeding, or threatened Actioninvestigation, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)a "PROCEEDING"), arising out of or pertaining to the fact that the Company Indemnified Party Covered Person is or was an officer officer, director, employee or director agent of the Company or any of its Subsidiaries Subsidiaries, to the fullest extent permitted under applicable Law. Each Covered Person shall be entitled to advancement from the Surviving Corporation of reasonable expenses (including attorneys' fees and disbursements) incurred in the defense of any Proceeding arising out of or pertaining to the fact that the Covered Person is or was serving at the request an officer, director, employee or agent of the Company or any of its Subsidiaries as Subsidiaries, such advancement to be made within twenty days of receipt by the Surviving Corporation from the Covered Person of a director or officer of another Personrequest therefor, whether asserted or claimed prior toprovided, at or after the Effective Time. In the event of that any Covered Person to whom expenses are advanced provides an undertaking to repay such Action, each Company Indemnified Party will be advances if it is ultimately determined that such Covered Person is not entitled to advancement of expenses incurred in indemnification. Alternatively, the Surviving Corporation may provide the defense of any such Action from claim with counsel reasonably acceptable to the Covered Person; provided, however, that if in the opinion of such Covered Person's attorney (who is licensed to practice in the jurisdiction where the proceeding is pending) there exists a conflict of interest between the Surviving Company within ten Corporation and such Covered Person, such Covered Person shall have the right to engage separate counsel, the reasonable expenses (10including attorneys' fees and disbursements) Business Days of receipt which shall be paid by the Surviving Company from Corporation or, if not paid by the Company Indemnified Party Surviving Corporation, by the Company's insurance carrier contemplated by Section 4.6(d). The Covered Person shall cooperate with the Surviving Corporation, at the Surviving Corporation's expense, in connection with the defense of a request thereforany Proceeding.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Pencil Acquisition Corp.)
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the any current or former directors, officers officer or employees of director may have under the Company and its Subsidiaries as provided in their respective certificates of incorporation Charter or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case Bylaws as in effect on the date of this the Original Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after from the Effective Time, to Time through the fullest extent permitted by Law sixth (including to the fullest extent authorized or permitted by any amendments to or replacements 6th) anniversary of the DGCL adopted after date on which the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) Effective Time occurs, the Surviving Company agrees that it will Corporation shall indemnify and hold harmless each individual who is current (as of the date of this Agreement, or who becomes prior to the Effective Time, a ) and each former officer and director or officer of the Company or from and against any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person and all loss and liability suffered and expenses (the “Company Indemnified Parties”including attorneys’ fees), against all claims, losses, liabilities, damages, judgments, inquiries, fines, fines and amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, reasonably incurred by such person in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))investigative, arising out of or pertaining to the fact that the Company Indemnified Party indemnified Person is or was an officer officer, director, employee or director fiduciary of the Company or any of its Subsidiaries at or is or was serving at prior to the request of the Company or any of its Subsidiaries as a director or officer of another PersonEffective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would be permitted under applicable Law and required or permitted under the Company Charter or Company Bylaws (or, as relevant, those of the applicable Subsidiary of the Company) as at the date of the Original Agreement. In the event of any such Action, each Company Indemnified Party will indemnified Person shall be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Corporation to the fullest extent that the Company within ten would be permitted under applicable Law and the Company Charter or Company Bylaws as at the date of the Original Agreement. Notwithstanding anything to the contrary herein (10but subject to any superior rights contained in the Company Charter or Company Bylaws (or, as relevant, those of the applicable Subsidiary of the Company) Business Days or applicable indemnification agreements to which the Company or its Subsidiaries, as applicable, is a party), prior to making any payment or advance in respect of receipt the indemnification obligations set forth in this Section 6.8, the Person who is requesting such advance shall provide a written affirmation by such Person of a good faith belief that the criteria for indemnification set forth under applicable Law have been satisfied and a written undertaking by such Person to repay all amounts so paid or reimbursed by the Surviving Company from Corporation, if it is ultimately determined that the criteria for indemnification have not been satisfied in connection with any threatened, pending, or completed civil, criminal, administrative, arbitration or investigative proceeding to which such Person is, or is threatened to be, made a party by reason of the former or present official capacity of such Person. No such indemnified Person shall settle, compromise or consent to the entry of any judgment in any threatened or actual Action for which indemnification could be sought by such indemnified Person hereunder unless Parent consents in writing to such settlement, compromise or consent (which consent shall not be unreasonably withheld, conditioned or delayed). Surviving Corporation agrees to continue and not to repeal or modify, and agree to include, to the extent permitted by applicable Law, in the charter documents for the Surviving Corporation, exculpatory provisions currently existing in the Company Indemnified Party of a request thereforCharter (or their substantial equivalent) eliminating personal liability for the Company's directors to the extent permissible under the CGCL.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, Potlatch shall, and shall cause the Surviving Company to, indemnify, defend and hold harmless, to the fullest extent permitted by under applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL applicable Law adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) (and shall promptly advance expenses actually and reasonably incurred to the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of fullest extent permitted under applicable Law (including to the fullest extent authorized or permitted by any amendments to applicable Law adopted after the date of this AgreementAgreement that increase the extent to which a corporation may advance expenses to its officers and directors)) each former and present director or officer of Deltic or any Deltic Subsidiary, as the case may be (the “Deltic Indemnified Parties”), if such Deltic Indemnified Party is or was a party or is threatened to be made a party, to any actual or threatened suit, action or other proceeding, whether civil, criminal, administrative or investigative, with respect to matters existing or occurring, or who becomes acts or omissions occurring, at or prior to the Effective TimeTime (including this Agreement, a director or officer the Merger and the other transactions contemplated hereby and the approval of any of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”foregoing), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, actually incurred by the Deltic Indemnifying Party in connection with any actual such suit, action or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Personother proceeding, whether asserted or claimed prior to, at or after the Effective Time. In , arising out of or pertaining to the event of any such Action, each Company fact that the Deltic Indemnified Party is or was an officer or director of Deltic or any Deltic Subsidiary or is or was serving at the request of Deltic or any Deltic Subsidiary as a director or officer of another Person. Any indemnification or other similar agreements of Deltic or any Deltic Subsidiary, in each case as in effect on the date of this Agreement, a true and complete copy of which has been made available to Potlatch prior to the date of this Agreement, shall be assumed by Potlatch in the Merger, without further action as of the Effective Time, and shall continue in full force and effect in accordance with their terms. For the avoidance of doubt, the indemnification provided for by this Section 6.05(a) shall not apply to any Deltic Indemnified Party who becomes a director of or remains an employee of the Combined Company after the Closing, in each case, to the extent relating to suits, actions or other proceedings to the extent relating to acts or omissions occurring after the Effective Time; it being understood that such matters will be entitled subject to advancement of expenses incurred the indemnification arrangements the Combined Company has in place after the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request thereforEffective Time that are applicable to similarly situated individuals.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) For a period of six (6) years from the Effective Time, Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now (whether asserted or claimed prior to, at or after the Effective Time) existing as of the date of this Agreement in favor of the current or any former directors, directors or officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation governing or by-laws (or comparable organizational documents) documents and any indemnification or other similar agreements between such Persons and set forth in Section 7.05(a) of the Company or any of its SubsidiariesDisclosure Letter, in each case as in effect on the forms made available by the Company to Parent or Parent’s Representatives prior to the date of this Agreement, shall continue in full force and effect in accordance with their terms except in terms, and each of the case Company and the Company Subsidiaries shall perform its obligations thereunder to the fullest extent available under Delaware law. Without limiting the foregoing, during the period commencing at the Effective Time and ending on the sixth (6th) anniversary of fraud, willful breach or an interested party transaction. From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will available under Delaware law, indemnify and hold harmless each individual who was prior to the date of this Agreement, is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), in such capacity, against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursementsdisbursements (“Losses”), incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (Time, including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director or officer or director of the Company or any of its Subsidiaries Company Subsidiary at or prior to the Effective Time or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another PersonPerson 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. In the event of any such Actionclaim, action, suit or proceeding, (x) to the fullest extent available under Delaware law, each Company Indemnified Party will be entitled to advancement of reasonable and documented out-of-pocket expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company Corporation in connection with matters for which such Indemnified Persons are eligible to be indemnified pursuant to this Section 7.05(a) within ten (10) Business Days of 15 days after receipt by Parent of a written request for such advance; provided, that any person to whom expenses are advanced provides an undertaking in favor of the Surviving Company from Corporation to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to indemnification pursuant to this Section 7.05(a) and (y) the Company Indemnified Party Surviving Corporation shall reasonably cooperate in the defense of a request thereforany such matter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Finjan Holdings, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify Corporation and its Subsidiaries shall (and Parent shall cause the Surviving Corporation and its Subsidiaries to) (i) indemnify, defend and hold harmless each individual who is as of the date of this Agreementharmless, or who becomes prior to the Effective Time, a director or officer all past and present directors and officers of the Company or any of and its Subsidiaries or who thereafter commences prior to the Effective Time(collectively, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”)) against any costs, against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, expenses (including attorneys’ fees and expenses and disbursements), judgments, fines, losses, claims, damages or liabilities incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), Action arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer a director, officer, employee or director fiduciary of the Company or any of its Subsidiaries or is or was serving at the request of of, or to represent the interest of, the Company or any of its Subsidiaries as a director director, officer, partner, member, trustee, fiduciary, employee or officer agent of another Personany other corporation, partnership, joint venture, limited liability company, trust, employee benefit plan or other enterprise, including any charitable or not-for profit public service organization or trade association, whether asserted or claimed prior to, at or after the Effective Time. In Time (including with respect to acts or omissions occurring in connection with this Agreement and the event consummation of any such Actionthe transactions contemplated hereby), each Company Indemnified Party will be entitled to and provide advancement of expenses incurred in to the defense of any such Action from the Surviving Company Indemnified Parties (within ten (10) Business Days days of receipt by Parent or the Surviving Company Corporation from the Company an Indemnified Party of a request therefor, together with an undertaking by such Indemnified Party to repay all amounts so advanced in the event it is ultimately and finally determined by a court of competent jurisdiction that such Indemnified Party is not entitled to be indemnified hereunder or under applicable Law), to the fullest extent permitted by applicable Law as it presently exists or may hereafter be amended (but, in the case of any such amendment, subject to applicable Law, only to the extent such amendment permits Parent or the Surviving Corporation to provide broader indemnification rights or rights of advancement of expenses than such Law permitted Parent or the Surviving Corporation to provide prior to such amendment), and (ii) without limitation to clause (i) above, to the fullest extent permitted by applicable Law, include and cause to be maintained in effect in the Surviving Corporation’s (or any successor’s) Certificate of Incorporation and By-Laws for a period of six (6) years after the Effective Time, provisions regarding elimination of liability of directors, and indemnification of and advancement of expenses to directors and officers of the Company, no less favorable than those contained in the Company’s Certificate of Incorporation and the Company’s By-Laws, as applicable.
Appears in 1 contract
Samples: Agreement and Plan of Merger (HUGHES Telematics, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany director or employee may have under any agreement or Company Plan, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor through the sixth anniversary of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect date on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after which the Effective TimeTime occurs (the “Indemnification Period”), to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers Parent shall, and directors) shall cause the Surviving Company agrees that it will Corporation to, indemnify and hold harmless each individual who is current (as of the date of this Agreement, or who becomes prior to the Effective Time, a ) and each former officer or director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time(collectively, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), from and against any and all claims, losses, liabilities, damages, judgments, inquiries, finesfines and fees, amounts paid in settlement and feessettlement, costs and expenses, including actual attorneys’ fees and disbursementsdisbursements (collectively, “Costs”) incurred in connection with any actual or threatened Action, whether civil, criminal, administrativeadministrative or investigative, regulatory directly or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), indirectly arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer officer, director or director fiduciary of the an Acquired Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Persontransactions contemplated by this Agreement, whether asserted or claimed prior to, at or after the Effective Time, to the same extent provided under the Company Constituent Documents (or, as relevant, those of the applicable Subsidiary of the Company) as of the date of this Agreement and any Contracts existing between any Indemnified Party and an Acquired Company as of the date of this Agreement. In the event of any such Action, each Company Indemnified Party will shall be entitled to advancement of expenses incurred in the defense of any such Action from Parent or the Surviving Company within ten (10) Business Days of receipt by Corporation to the Surviving Company from same extent provided under the Company Constituent Documents (or, as relevant, those of the applicable Subsidiary of the Company) as of the date of this Agreement and any Contracts existing between any Indemnified Party and an Acquired Company as at the date hereof. Notwithstanding anything to the contrary herein (but subject to any superior rights contained in the Company Constituent Documents (or, as relevant, those of the applicable Subsidiary of the Company) or applicable indemnification agreements to which any Acquired Company is a request thereforparty), prior to making any payment or advance in respect of the indemnification obligations set forth in this Section 5.9, the Person who is requesting such indemnification or advance shall agree to repay such payments or advances if it is ultimately determined that such Person is not entitled to indemnification.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to From the Effective Time now existing in favor through the sixth anniversary of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect date on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after which the Effective TimeTime occurs, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers Parent and directors) the Surviving Company agrees that it will Corporation shall jointly and severally indemnify and hold harmless each individual person who is as of now, or has been at any time prior to the date of this Agreementhereof, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”"Covered Persons"), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and reasonable fees, costs costs, and expenses, including reasonable attorneys’ ' fees and disbursementsdisbursements (collectively, "Costs"), incurred in connection with any actual claim, action, suit, proceeding, or threatened Actioninvestigation, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)a "Proceeding"), arising out of or pertaining to the fact that the Company Indemnified Party Covered Person is or was an officer officer, director, employee or director agent of the Company or any of its Subsidiaries Subsidiaries, to the fullest extent permitted under applicable Law. Each Covered Person shall be entitled to advancement from the Surviving Corporation of reasonable expenses (including attorneys' fees and disbursements) incurred in the defense of any Proceeding arising out of or pertaining to the fact that the Covered Person is or was serving at the request an officer, director, employee or agent of the Company or any of its Subsidiaries as Subsidiaries, such advancement to be made within twenty days of receipt by the Surviving Corporation from the Covered Person of a director or officer of another Personrequest therefor, whether asserted or claimed prior toprovided, at or after the Effective Time. In the event of that any Covered Person to whom expenses are advanced provides an undertaking to repay such Action, each Company Indemnified Party will be advances if it is ultimately determined that such Covered Person is not entitled to advancement of expenses incurred in indemnification. Alternatively, the Surviving Corporation may provide the defense of any such Action from claim with counsel reasonably acceptable to the Covered Person; provided, however, that if in the opinion of such Covered Person's attorney (who is licensed to practice in the jurisdiction where the proceeding is pending) there exists a conflict of interest between the Surviving Company within ten Corporation and such Covered Person, such Covered Person shall have the right to engage separate counsel, the reasonable expenses (10including attorneys' fees and disbursements) Business Days of receipt which shall be paid by the Surviving Company from Corporation or, if not paid by the Company Indemnified Party Surviving Corporation, by the Company's insurance carrier contemplated by Section 4.6(d). The Covered Person shall cooperate with the Surviving Corporation, at the Surviving Corporation's expense, in connection with the defense of a request thereforany Proceeding.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Dixon Ticonderoga Co)
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the any current or former directors, officers officer or employees of director may have under the Company and its Subsidiaries as provided in their respective certificates of incorporation Charter or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case Bylaws as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after from the Effective Time, to Time through the fullest extent permitted by Law sixth (including to the fullest extent authorized or permitted by any amendments to or replacements 6th) anniversary of the DGCL adopted after date on which the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) Effective Time occurs, the Surviving Company agrees that it will Corporation shall indemnify and hold harmless each individual who is current (as of the date of this Agreement, or who becomes prior to the Effective Time, a ) and each former officer and director or officer of the Company or from and against any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person and all loss and liability suffered and expenses (the “Company Indemnified Parties”including attorneys’ fees), against all claims, losses, liabilities, damages, judgments, inquiries, fines, fines and amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, reasonably incurred by such person in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))investigative, arising out of or pertaining to the fact that the Company Indemnified Party indemnified Person is or was an officer officer, director, employee or director fiduciary of the Company or any of its Subsidiaries at or is or was serving at prior to the request of the Company or any of its Subsidiaries as a director or officer of another PersonEffective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would be permitted under applicable Law and required or permitted under the Company Charter or Company Bylaws (or, as relevant, those of the applicable Subsidiary of the Company) as at the date hereof. In the event of any such Action, each Company Indemnified Party will indemnified Person shall be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Corporation to the fullest extent that the Company within ten would be permitted under applicable Law and the Company Charter or Company Bylaws as at the date hereof. Notwithstanding anything to the contrary herein (10but subject to any superior rights contained in the Company Charter or Company Bylaws (or, as relevant, those of the applicable Subsidiary of the Company) Business Days or applicable indemnification agreements to which the Company or its Subsidiaries, as applicable, is a party), prior to making any payment or advance in respect of receipt the indemnification obligations set forth in this Section 6.8, the Person who is requesting such advance shall provide a written affirmation by such Person of a good faith belief that the criteria for indemnification set forth under applicable Law have been satisfied and a written undertaking by such Person to repay all amounts so paid or reimbursed by the Surviving Company from Corporation, if it is ultimately determined that the criteria for indemnification have not been satisfied in connection with any threatened, pending, or completed civil, criminal, administrative, arbitration or investigative proceeding to which such Person is, or is threatened to be, made a party by reason of the former or present official capacity of such Person. No such indemnified Person shall settle, compromise or consent to the entry of any judgment in any threatened or actual Action for which indemnification could be sought by such indemnified Person hereunder unless Parent consents in writing to such settlement, compromise or consent (which consent shall not be unreasonably withheld, conditioned or delayed). Surviving Corporation agrees to continue and not to repeal or modify, and agree to include, to the extent permitted by applicable Law, in the charter documents for the Surviving Corporation, exculpatory provisions currently existing in the Company Indemnified Party of a request thereforCharter (or their substantial equivalent) eliminating personal liability for the Company's directors to the extent permissible under the CGCL.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will TopCo shall indemnify and hold harmless each individual who is as of the date of this AgreementOriginal Signing Date, or who becomes prior to the Effective Time, a director or officer of the Company RockTenn or MWV or any of its Subsidiaries their subsidiaries or who is as of the Original Signing Date, or who thereafter commences prior to the Effective Time, serving at the request of the Company RockTenn or MWV, as applicable, or any of its Subsidiaries their respective subsidiaries as a director or officer of another Person person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company RockTenn or MWV, as applicable, or any of its Subsidiaries their respective subsidiaries or is or was serving at the request of the Company RockTenn or MWV, as applicable, or any of its Subsidiaries their respective subsidiaries as a director or officer of another Personperson or in respect of any acts or omissions in their capacities as such directors of officers occurring prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the same extent as such Indemnified Parties are indemnified as of the Original Signing Date by RockTenn pursuant to the RockTenn Articles of Incorporation, the By-laws of RockTenn or the governing or organizational documents of any subsidiary of RockTenn, or by MWV pursuant to the MWV Certificate of Incorporation, the By-laws of MWV or the governing organizational documents of any subsidiary of MWV, as applicable, or and any indemnification agreements in existence as of the Original Signing Date. In the event of any such Actionclaim, action, suit or proceeding, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from TopCo to the same extent as such Indemnified Parties are entitled to advance of expenses as of the Original Signing Date by RockTenn pursuant to the RockTenn Articles of Incorporation, the By-laws of RockTenn or the governing or organizational documents of any subsidiary of RockTenn, or by MWV pursuant to the MWV Certificate of Incorporation, the By-laws of MWV or the governing or organizational documents of any subsidiary of MWV, as applicable, and any indemnification agreements in existence as of the Original Signing Date; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the GBCC, the DGCL, the RockTenn Articles of Incorporation or the By-laws of RockTenn, or the MWV Certificate of Incorporation or the By-laws of MWV, as applicable, and any indemnification agreements in existence as of the Original Signing Date, to repay such advances if it is ultimately determined that such person is not entitled to indemnification and (ii) TopCo shall, and shall cause its subsidiaries to, cooperate in the defense of any such matter. In the event that TopCo, MWV Surviving Company within ten or RockTenn Surviving Corporation or any of their respective successors or assigns (10i) Business Days consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of receipt by the 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, TopCo, MWV Surviving Company from and/or RockTenn Surviving Corporation, as applicable, shall cause proper provision to be made so that the successors and assigns of TopCo, MWV Surviving Company Indemnified Party of a request thereforand/or RockTenn Surviving Corporation, as applicable, assume the obligations set forth in this Section 6.4.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Initial Holdco Merger Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will Marriott shall indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Initial Holdco Merger Effective Time, a director or officer of the Company Starwood or any of its Subsidiaries subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Initial Holdco Merger Effective Time, serving at the request of the Company Starwood, as applicable, or any of its Subsidiaries subsidiaries as a director or officer of another Person person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Initial Holdco Merger Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company Starwood or any of its Subsidiaries subsidiaries or is or was serving at the request of the Company Starwood or any of its Subsidiaries subsidiaries as a director or officer of another Personperson or in respect of any acts or omissions in their capacities as such directors or officers occurring prior to the Initial Holdco Merger Effective Time, whether asserted or claimed prior to, at or after the Initial Holdco Merger Effective Time, to the same extent as such Indemnified Parties are indemnified as of the date of this Agreement by Starwood pursuant to the Starwood Charter, the Starwood By-laws or the governing organizational documents of any subsidiary of Starwood, as applicable, and any indemnification agreements with directors and officers of Starwood in existence as of the date of this Agreement and listed in Section 5.4(a) of the Starwood Disclosure Letter. In the event of any such Actionclaim, action, suit or proceeding, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from Marriott to the same extent as such Indemnified Parties are entitled to advance of expenses as of the date of this Agreement by Starwood pursuant to the Starwood Charter, the Starwood By-laws or the governing or organizational documents of any subsidiary of Starwood, as applicable, and any indemnification agreements with directors and officers of Starwood in existence as of the date of this Agreement and listed in Section 5.4(a) of the Starwood Disclosure Letter; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by Applicable Law, the Starwood Charter or the Starwood By‑laws or the governing or organizational documents of any Starwood subsidiary, as applicable, and any indemnification agreements with directors and officers of Starwood in existence as of the date of this Agreement and listed in Section 5.4(a) of the Starwood Disclosure Letter, to repay such advances if it is ultimately determined that such person is not entitled to indemnification and (ii) Marriott shall, and shall cause its subsidiaries to, cooperate in the defense of any such matter. In the event that Marriott, the Surviving Company within ten Corporation or any of their respective successors or assigns (10i) Business Days consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of receipt by 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, Marriott or the Surviving Company from Corporation, as applicable, shall cause proper provision to be made so that the Company Indemnified Party successors and assigns of a request thereforMarriott or the Surviving Corporation, as applicable, assume the obligations set forth in this Section 5.4.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Starwood Hotel & Resorts Worldwide, Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany employee may have under any agreement or Company Plan, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor through the sixth anniversary of the current date on which the Effective Time occurs, Parent shall, or shall cause each of MTR and the Company to, indemnify and hold harmless each present (as of the Effective Time) and former directorsofficer, officers director, manager or employees employee of MTR and its Subsidiaries and each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this AgreementMember Representative and the Stockholders Representative (collectively, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), as applicable against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursementsdisbursements (collectively, “Costs”), incurred in connection with any actual or threatened Action, whether civil, criminal, administrativeadministrative or investigative, regulatory arising out of or investigative pertaining to (including with respect to i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of MTR, the Company or any of their respective Subsidiaries or (ii) matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and applicable MTR’s certificate of incorporation, MTR’s bylaws, the Company Charter and Company Operating Agreement each as at the date hereof (collectively, the “Constituent Documents”). In the event of any such Action, (A) each Company Indemnified Party will shall be entitled to advancement of expenses incurred in the defense of any such Action from Parent or MTR or the Surviving Company Company, as applicable, to the fullest extent permitted under applicable Law and the applicable Constituent Documents, within ten (10) Business Days of receipt by Parent or MTR or the Surviving Company Company, as applicable, from the Company Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) none of Parent, MTR or the Company shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) MTR and the Company, as applicable, shall cooperate in the defense of any such matter. Parent and MTR, or the Company, as applicable, shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
Appears in 1 contract
Samples: Agreement and Plan of Merger (MTR Gaming Group Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Initial Holdco Merger Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will Marriott shall indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Initial Holdco Merger Effective Time, a director or officer of the Company Starwood or any of its Subsidiaries subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Initial Holdco Merger Effective Time, serving at the request of the Company Starwood, as applicable, or any of its Subsidiaries subsidiaries as a director or officer of another Person person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Initial Holdco Merger Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company Starwood or any of its Subsidiaries subsidiaries or is or was serving at the request of the Company Starwood or any of its Subsidiaries subsidiaries as a director or officer of another Personperson or in respect of any acts or omissions in their capacities as such directors or officers occurring prior to the Initial Holdco Merger Effective Time, whether asserted or claimed prior to, at or after the Initial Holdco Merger Effective Time, to the same extent as such Indemnified Parties are indemnified as of the date of this Agreement by Starwood pursuant to the Starwood Charter, the Starwood By-laws or the governing organizational documents of any subsidiary of Starwood, as applicable, and any indemnification agreements with directors and officers of Starwood in existence as of the date of this Agreement and listed in Section 5.4(a) of the Starwood Disclosure Letter. In the event of any such Actionclaim, action, suit or proceeding, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from Marriott to the same extent as such Indemnified Parties are entitled to advance of expenses as of the date of this Agreement by Starwood pursuant to the Starwood Charter, the Starwood By-laws or the governing or organizational documents of any subsidiary of Starwood, as applicable, and any indemnification agreements with directors and officers of Starwood in existence as of the date of this Agreement and listed in Section 5.4(a) of the Starwood Disclosure Letter; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by Applicable Law, the Starwood Charter or the Starwood By-laws or the governing or organizational documents of any Starwood subsidiary, as applicable, and any indemnification agreements with directors and officers of Starwood in existence as of the date of this Agreement and listed in Section 5.4(a) of the Starwood Disclosure Letter, to repay such advances if it is ultimately determined that such person is not entitled to indemnification and (ii) Marriott shall, and shall cause its subsidiaries to, cooperate in the defense of any such matter. In the event that Marriott, the Surviving Company within ten Corporation or any of their respective successors or assigns (10i) Business Days consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of receipt by 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, Marriott or the Surviving Company from Corporation, as applicable, shall cause proper provision to be made so that the Company Indemnified Party successors and assigns of a request thereforMarriott or the Surviving Corporation, as applicable, assume the obligations set forth in this Section 5.4.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Marriott International Inc /Md/)
Indemnification, Exculpation and Insurance. (a) Parent agrees that that, for a period of six years from and after the Effective Time, all rights existing as of the Agreement Date to indemnification, advancement of expenses and exculpation from liabilities Liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or and/or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates memorandum and articles of incorporation association or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as the Company Subsidiaries in effect on as of the date of this Agreement, shall Agreement Date will continue in full force and effect in accordance with their terms except in terms, and Parent will cause the case of fraudSurviving Company and the Company Subsidiaries to perform their respective obligations thereunder. Without limiting the foregoing, willful breach or an interested party transaction. From from and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers Parent shall, and directors) shall cause the Surviving Company agrees that it will to, indemnify and hold harmless each individual who was prior to or is as of the date of this AgreementAgreement Date, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its the Company Subsidiaries or who was prior to or is as of the Agreement Date, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, lossesLiabilities, liabilities, damages, judgments, inquiriesJudgments, fines, amounts paid in settlement and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative Action (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated herebyTransactions)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. In the event of any such Action, (x) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) 10 Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by applicable Law, the Surviving Company’s memorandum and articles of association (or comparable organizational documents) or any applicable indemnification agreement, to repay such advances if it is ultimately determined by final non-appealable adjudication that such Person is not entitled to indemnification and (y) the Surviving Company will cooperate in the defense of any such matter. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, action, suit, proceeding or investigation, unless such settlement, compromise, consent or termination includes an unconditional release of all of the Company Indemnified Parties covered by the claim, action, suit, proceeding or investigation from all liability arising out of such claim, action, suit, proceeding or investigation.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Initial Holdco Merger Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will MVW shall indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Initial Holdco Merger Effective Time, a current or former director or officer of the Company ILG or any of its Subsidiaries subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Initial Holdco Merger Effective Time, serving at the request of the Company ILG, as applicable, or any of its Subsidiaries subsidiaries as a current or former director or officer of another Person person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Initial Holdco Merger Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company ILG or any of its Subsidiaries subsidiaries or is or was serving at the request of the Company ILG or any of its Subsidiaries subsidiaries as a director or officer of another Personperson or in respect of any acts or omissions in their capacities as such directors or officers occurring prior to the Initial Holdco Merger Effective Time, whether asserted or claimed prior to, at or after the Initial Holdco Merger Effective Time, to the same extent as such Indemnified Parties are indemnified as of the date of this Agreement by ILG pursuant to the ILG Charter, the ILG Bylaws or the comparable organizational documents of any subsidiary of ILG, as applicable, and any indemnification agreements with directors and officers of ILG in existence as of the date of this Agreement. In the event of any such Actionclaim, action, suit or proceeding, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from MVW to the Surviving Company within ten same extent as such Indemnified Parties are entitled to advancement of expenses as of the date of this Agreement by ILG pursuant to the ILG Charter, the ILG Bylaws or the comparable organizational documents of any subsidiary of ILG, as applicable, and any indemnification agreements with directors and officers of ILG in existence as of the date of this Agreement; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by Applicable Law, the ILG Charter or the ILG Bylaws or the comparable organizational documents of any ILG subsidiary, as applicable, and any indemnification agreements with directors and officers of ILG in existence as of the date of this Agreement, to repay such advances if it is ultimately determined that such person is not entitled to indemnification and (10ii) Business Days MVW shall, and shall cause its subsidiaries to, cooperate in the defense of receipt by any such matter. In the Surviving Company from event that MVW or any of its successors or assigns (i) consolidates with or merges into any other person and is not the Company Indemnified Party continuing or surviving corporation or entity of a request thereforsuch 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, MVW shall cause proper provision to be made so that the successors and assigns of MVW assume the obligations set forth in this Section 5.4.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany employee may have under any agreement or Company Plan, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor through the sixth anniversary of the current date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former directorsofficer, officers director or employees employee of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, disbursements incurred in connection with any actual pending or threatened Action, whether civil, criminal, administrativeadministrative or investigative, regulatory arising out of, pertaining to or investigative by reason of (including with respect to i) the fact that the Indemnified Party is or was an officer, director, employee, fiduciary or agent of the Company or any of its Subsidiaries or, while a director, officer or employee of the Company or its Subsidiaries, is or was serving at the request of the Company or any of its Subsidiaries as a director, officer, employee or agent of another corporation or of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity or (ii) matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as of the date hereof or (iii) in connection with the enforcement of any Indemnified Party’s rights under this Section 5.13 by such Indemnified Party or his or her heirs or legal representatives. In the event of any such pending or threatened Action, including any such Action to enforce any Indemnified Party’s rights under this Section 5.13, (A) each Company Indemnified Party will shall be entitled to advancement of expenses (including attorneys’ fees and expenses) incurred in connection with such Action from Parent and the Surviving Corporation to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as of the date hereof; provided, that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by DGCL or the Company Charter or Company Bylaws, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under this Agreement or any Law, Contract or other source for which indemnification may be available, and (B) the Surviving Corporation shall cooperate in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request thereformatter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Spectrum Pharmaceuticals Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers officers, agents or employees of the Company and its the Company Subsidiaries as provided in their respective certificates articles of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its the Company Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in respective terms, and Parent shall cause the case of fraudCompany and the Company Subsidiaries to perform their respective obligations thereunder. Without limiting the foregoing, willful breach or an interested party transaction. From from and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements each of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers Parent and directors) the Surviving Company agrees that it will will, to the maximum extent set forth in the Company Charter and Company By-laws and under applicable Law, indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director director, officer or officer employee of another Person (collectively, the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory arising out of or investigative pertaining to (including with respect to i) matters existing or occurring or alleged to occur at or prior to the Effective Time (including the decision of the Company Board to enter into this Agreement, the terms of this Agreement and the pendency and consummation of the transactions and actions contemplated hereby)), arising out of ) or pertaining to (ii) the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, (A) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit, proceeding or investigation from the Surviving Company Corporation within ten (10) Business Days of receipt by the Surviving Company Corporation from the Company Indemnified Party of a request therefor; provided, however, that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the FBCA or the Company Charter or Company By-laws (in each case as in effect immediately prior to the Effective Time), to repay such advances if it is ultimately determined that such person is not entitled to be indemnified by the Surviving Corporation as authorized by the FBCA, (B) without limiting the foregoing, each Company Indemnified Party may retain the Company’s regularly engaged independent legal counsel (provided that such engagement would not create a conflict of interest under applicable rules of ethics) or other counsel satisfactory to them, and Parent and the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Company Indemnified Party as promptly as statements therefor are received, (C) the Surviving Corporation shall not settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Company Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Company Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Company Indemnified Party otherwise consents, and (D) Parent and the Surviving Corporation shall use their reasonable best efforts to assist in the defense of any such matter.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany employee may have under any agreement or Company Plan, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor through the sixth anniversary of the current date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former directors, officers officer or employees director of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, disbursements incurred in connection with any actual pending or threatened Action, whether civil, criminal, administrativeadministrative or investigative, regulatory arising out of, pertaining to or investigative by reason of (including with respect to i) the fact that the Indemnified Party is or was an officer director, employee, fiduciary or agent of the Company or any of its Subsidiaries or, while a director, officer or employee of the Company or its Subsidiaries, is or was serving at the request of the Company or any of its Subsidiaries as a director, officer, employee or agent of another corporation or of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity or (ii) matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as of the date hereof or (iii) in connection with the enforcement of any Indemnified Party’s rights under this Section 5.13 by such Indemnified Party or his or her heirs or legal representatives. In the event of any such pending or threatened Action, including any such Action to enforce any Indemnified Party’s rights under this Section 5.13, (A) each Company Indemnified Party will shall be entitled to advancement of expenses (including attorneys’ fees and expenses) incurred in connection with such Action from Parent and the Surviving Corporation to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as of the date hereof; provided, that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by DGCL or the Company Charter or Company Bylaws, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under this Agreement or any Law, Contract or other source for which indemnification may be available, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents in writing (such consent not to be unreasonably withheld), and (C) the Surviving Corporation and the Indemnified Party shall reasonably cooperate in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request thereformatter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Infrastructure & Energy Alternatives, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws bylaws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, Company Subsidiaries shall continue in full force and effect in accordance with their terms except in (it being agreed that after the case of fraudClosing such rights shall be mandatory rather than permissive, willful breach or an interested party transactionif applicable), and Parent shall cause the Company and the Company Subsidiaries to perform its obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who was prior to or is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its the Company Subsidiaries or who was prior to or is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (x) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) 10 Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL, the Surviving Company’s certificate of incorporation or bylaws (or comparable organizational documents) or any applicable indemnification agreement, to repay such advances if it is ultimately determined by final non-appealable adjudication that such person is not entitled to indemnification and (y) the Surviving Company and such Company Indemnified Party shall cooperate with each other in the defense of any such matter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Intrawest Resorts Holdings, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) Organizational Documents and any indemnification or other similar agreements Contracts of the Company or any Company Subsidiary set forth on Section 6.09(a) of its Subsidiariesthe Company Disclosure Letter, in each case case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except to the extent provided in the case of fraud, willful breach or an interested party transactionfollowing sentence. From and after the Effective TimeTime and for a period of at least six (6) years thereafter, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company Corporation agrees that it will (and Parent shall cause the Surviving Corporation to) indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any Company Subsidiary or who is as of its Subsidiaries the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person (collectively, the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened ActionClaim, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such ActionClaim, (i) each Company Indemnified Party will will, to the fullest extent permitted under applicable Law, be entitled to advancement of expenses incurred in the defense of any such Action Claim from the Surviving Company Corporation within ten (10) Business Days of after receipt by the Surviving Company Corporation from the Company Indemnified Party of a request therefortherefor (provided that any Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to indemnification), and (ii) the Surviving Corporation shall cooperate in good faith in the defense of any such matter. In addition, during the period commencing at the Effective Time and ending on the sixth (6th) anniversary of the Effective Time, the Surviving Corporation will (and Parent will cause the Surviving Corporation to) cause the certificates of incorporation, bylaws and other similar organizational documents of the Surviving Corporation to contain provisions with respect to indemnification, exculpation and the advancement of expenses that are at least as favorable as the indemnification, exculpation and advancement of expenses provisions set forth in the Organizational Documents as of the date of this Agreement. During such six-year period, such provisions may not be repealed, amended or otherwise modified in any manner except as required by applicable Law.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the any current or former directors, officers officer or employees of director may have under the Company and its Subsidiaries as provided in their respective certificates of incorporation Charter or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case Bylaws as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after from the Effective Time, to Time through the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements sixth anniversary of the DGCL adopted after date on which the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) Effective Time occurs, the Surviving Company agrees that it will Corporation shall indemnify and hold harmless each individual who is current (as of the date of this Agreement, or who becomes prior to the Effective Time, a ) and each former officer and director or officer of the Company or from and against any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person and all loss and liability suffered and expenses (the “Company Indemnified Parties”including attorneys' fees), against all claims, losses, liabilities, damages, judgments, inquiries, fines, fines and amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, reasonably incurred by such person in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))investigative, arising out of or pertaining to the fact that the Company Indemnified Party indemnified Person is or was an officer officer, director, employee or director fiduciary of the Company or any of its Subsidiaries at or is or was serving at prior to the request of the Company or any of its Subsidiaries as a director or officer of another PersonEffective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would be permitted under applicable Law and required or permitted under the Company Charter or Company Bylaws (or, as relevant, those of the applicable Subsidiary of the Company) as at the date hereof. In the event of any such Action, each Company Indemnified Party will indemnified Person shall be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Corporation to the fullest extent that the Company within ten would be permitted under applicable Law and the Company Charter or Company Bylaws as at the date hereof. Notwithstanding anything to the contrary herein (10but subject to any superior rights contained in the Company Charter of Company Bylaws (or, as relevant, those of the applicable Subsidiary of the Company) Business Days or applicable indemnification agreements to which the Company or its Subsidiaries, as applicable, is a party), prior to making any payment or advance in respect of receipt the indemnification obligations set forth in this Section 6.8, the Person who is requesting such advance shall provide a written affirmation by such Person of a good faith belief that the criteria for indemnification set forth under applicable Law have been satisfied and a written undertaking by such Person to repay all amounts so paid or reimbursed by the Surviving Company from Corporation, if it is ultimately determined that the criteria for indemnification have not been satisfied in connection with any threatened, pending, or completed civil, criminal, administrative, arbitration or investigative proceeding to which such Person is, or is threatened to be, made a party by reason of the former or present official capacity of such Person. No such indemnified Person shall settle, compromise or consent to the entry of any judgment in any threatened or actual Action for which indemnification could be sought by such indemnified Person hereunder unless Parent consents in writing to such settlement, compromise or consent (which consent shall not be unreasonably withheld, conditioned or delayed). Surviving Corporation agrees to continue and not to repeal or modify, and agree to include, to the extent permitted by applicable Law, in the charter documents for the Surviving Corporation, exculpatory provisions currently existing in the Company Indemnified Party of a request thereforCharter (or their substantial equivalent) eliminating personal liability for the Company's directors to the extent permissible under the DGCL.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (AGA Medical Holdings, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its the Company Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transactionterms. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director or officer of another Person (the “"Company Indemnified Parties”"), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ ' fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (x) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company's certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to indemnification and (y) the Surviving Company shall cooperate in the defense of any such matter.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that that, from and after the Effective Time, it will cause the Company and Company Subsidiaries to provide all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of between any Company Indemnified Party, on the one hand, and the Company or any of its Subsidiaries, on the other hand (to the extent disclosed on Section 7.05(a) of the Company Disclosure Letter or otherwise made available to Parent prior to the date hereof), in each case case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transactionterms. From and after the Effective Time, Parent agrees to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) cause the Surviving Company agrees that it will to indemnify and hold harmless each individual who was prior to or is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable and documented fees, costs and expenses, including attorneys’ fees and disbursementsdisbursements (subject to the limitations described in Section 7.05(d)), incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, in each case, arising out of acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the extent provided by the Company Charter, the Company By-laws or the comparable charter or organizational documents of the Company Subsidiaries as in effect on the date of this Agreement, as applicable, or the terms of any indemnification or other similar agreement between any Company Indemnified Party, on the one hand, and the Company or any of its Subsidiaries, on the other hand (to the extent disclosed on Section 7.05(a) of the Company Disclosure Letter or otherwise made available to Parent prior to the date hereof), as in effect on the date of this Agreement, as applicable, and in each case subject to applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (x) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) twenty Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor, in each case, to the extent provided by the Company Charter, the Company By-laws or the comparable charter or organizational documents of the Company Subsidiaries as in effect on the date of this Agreement, as applicable, or the terms of any indemnification or other similar agreement between any Company Indemnified Party, on the one hand, and the Company or any of its Subsidiaries, on the other hand (to the extent made available to Parent prior to the date hereof), as in effect on the date of this Agreement, as applicable; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to indemnification and (y) the Surviving Company and such Company Indemnified Party shall cooperate with each other in the defense of any such matter. Section 7.05(a) of the Company Disclosure Letter sets forth a complete and correct list of all indemnification or other similar agreements (other than organizational documents of the Company or any of its Subsidiaries) between any Company Indemnified Party, on the one hand, and the Company or any of its Subsidiaries, on the other hand.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that shall cause the Surviving Corporation and its Subsidiaries to: (i) indemnify (including the advancement of attorneys’ fees and expenses) to the full extent of all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now thereto existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on individual who was prior to the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, manager or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director director, manager or officer of another Person (the “Company Indemnified Parties”), against all claimsin such capacity, lossesas provided in any indemnification agreement set forth in Section 7.4(a) of the Company Disclosure Letter or in the Company Charter or Company Bylaws or other organizational documents, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred each case as in connection with any actual effect on the date of this Agreement for acts or threatened Action, whether civil, criminal, administrative, regulatory or investigative omissions occurring prior to the Effective Time for a period of six (including 6) years after the Effective Time with respect to matters existing any claims against such directors, managers, or officers arising out of such acts or omissions, except as otherwise required by applicable Law; and (ii) not amend, repeal, or otherwise modify such indemnification provisions in the documents described in clause (a) of this Section 7.4 in any respect that would adversely affect such rights during the period of six (6) years after the Effective Time, except as otherwise required by applicable Law. All rights to exculpation, elimination of liability, indemnification and advancement of expenses for acts or omissions occurring or alleged to occur have occurred at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another PersonTime, whether asserted or claimed prior to, at or after the Effective Time, now existing in favor of the Company Indemnified Parties as provided in any indemnification agreement set forth in Section 7.4(a) of the Company Disclosure Letter or in the Company Charter or Company Bylaws or other organizational documents, in each case as in effect on the date of this Agreement shall survive the transactions contemplated hereby, including the Merger, and shall continue in full force and effect in accordance with the terms thereof. In Notwithstanding anything herein to the event of contrary, if any such Action, each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from notifies Parent or the Surviving Company within ten Corporation on or prior to the sixth (106th) Business Days anniversary of receipt by the Surviving Company from the Company Indemnified Party Effective Time of a request thereformatter in respect of which such Person intends in good faith to seek indemnification pursuant to this Section 7.4, the provisions of this Section 7.4 shall continue in effect with respect to such matter until the final disposition of all claims, actions, investigations, suits and proceedings relating thereto.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers Parent shall, and directors) shall cause the Surviving Company agrees that it will Corporation and the Second Surviving Entity to, indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of Parent, the Company or any of its their respective Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of Parent, the Company or any of its their respective Subsidiaries as a director or officer of another Person person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated herebyTransactions)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of Parent, the Company or any of its their respective Subsidiaries or is or was serving at the request of Parent, the Company or any of its their respective Subsidiaries as a director or officer of another Personperson or in respect of any acts or omissions in their capacities as such directors of officers occurring prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the same extent as such Indemnified Parties are indemnified as of the date of this Agreement by Parent or the Company pursuant to the Parent Company Certificate of Incorporation, the Parent Bylaws, Company Certificate of Incorporation, the Bylaws of the Company or the governing or organizational documents of any of their respective Subsidiaries and any indemnification agreements in existence as of the date of this Agreement (as applicable). In the event of any such Actionclaim, action, suit or proceeding, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Corporation, the Second Surviving Entity or Parent to the same extent as such Indemnified Parties are entitled to advance of expenses as of the date of this Agreement by Parent or the Company within ten pursuant to the Parent Certificate of Incorporation, Parent Bylaws, Company Certificate of Incorporation, the Bylaws of the Company or the governing or organizational documents of any Subsidiary of the Company (10) Business Days of receipt as applicable); provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the Surviving Company from DGCL, the Parent Certificate of Incorporation, the Parent Bylaws, the Company Indemnified Party Certificate of a request thereforIncorporation or the Bylaws of the Company, and any indemnification agreements in existence as of the date of this Agreement, to repay such advances if it is ultimately determined that such person is not entitled to indemnification and (ii) Parent shall, and shall cause its Subsidiaries to, cooperate in the defense of any such matter. In the event that Parent, the Surviving Corporation, the Second Surviving Entity or any of their respective successors or assigns (i) consolidates with or merges into any other person and is not 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, the Surviving Corporation and/or the Second Surviving Entity, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent, the Surviving Corporation and/or the Second Surviving Entity, as applicable, assume the obligations set forth in this Section 6.6.
Appears in 1 contract
Samples: Stockholders Agreement (Fairmount Santrol Holdings Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, Potlatch shall, and shall cause the Surviving Company to, indemnify, defend and hold harmless, to the fullest extent permitted by under applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL applicable Law adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) (and shall promptly advance expenses actually and reasonably incurred to the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of fullest extent permitted under applicable Law (including to the fullest extent authorized or permitted by any amendments to applicable Law adopted after the date of this AgreementAgreement that increase the extent to which a corporation may advance expenses to its officers and directors)) each former and present director or officer of Deltic or any Deltic Subsidiary, as the case may be (the “Deltic Indemnified Parties”), if such Deltic Indemnified Party is or was a party or is threatened to be made a party, to any actual or threatened suit, action or other proceeding, whether civil, criminal, administrative or investigative, with respect to matters existing or occurring, or who becomes acts or omissions occurring, at or prior to the Effective TimeTime (including this Agreement, a director or officer the Merger and the other transactions contemplated hereby and the approval of any of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”foregoing), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, actually incurred by the Deltic Indemnifying Party in connection with any actual such suit, action or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Personother proceeding, whether asserted or claimed prior to, at or after the Effective Time. In , arising out of or pertaining to the event of any such Action, each Company fact that the Deltic Indemnified Party is or was an officer or director of Deltic or any Deltic Subsidiary or is or was serving at the request of Deltic or any Deltic Subsidiary as a director or officer of another Person. Any indemnification or other similar agreements of Deltic or any Deltic Subsidiary, in each case as in effect on the date of this Agreement, a true and complete copy of which has been made available to Potlatch prior to the date of this Agreement, shall be assumed by Potlatch in the Merger, without further action as of the Effective Time, and shall continue in full force and effect in accordance with their terms. For the avoidance of doubt, the indemnification provided for by this Section 6.05(a) shall not apply to any Deltic Indemnified Party who becomes a director of or remains an employee of the Combined Company after the Closing, in each case, to the extent relating to suits, actions or other proceedings to the extent relating to acts or omissions occurring after the Effective Time; it being understood that such matters will be entitled subject to advancement of expenses incurred the indemnification arrangements the Combined Company has in place after the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request thereforEffective Time that are applicable to similarly situated individuals.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) From and after the Effective Time, Parent agrees and Merger Sub agree that all rights to indemnification, advancement of expenses and exculpation from liabilities of each former and present (as of immediately prior to the Effective Time) director, officer or employee of the Company or any Company Subsidiary and each person who served as a director, officer, employee, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise if such service was at the request or for acts the benefit of the Company or omissions any Company Subsidiary (each, together with such person’s heirs, executors or administrators, a “D&O Indemnified Party”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any Action with respect to matters existing or occurring at or prior to the Effective Time now existing in favor (including this Agreement, the Transactions and other actions contemplated hereby), arising out of or pertaining to the current fact that the D&O Indemnified Party is or former directors, officers was an officer or employees director of the Company and its Subsidiaries or any Company Subsidiary or is or was serving at the request of or for the benefit of the Company or any Company Subsidiary as a director, officer, employee, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise or other Person, whether asserted or claimed prior to, at or after the Effective Time as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this AgreementAgreement or in any agreement, a true and complete copy of which agreement has been made available (including by filing with the SEC) by the Company prior to the date hereof, to which the Company or any of the Company Subsidiaries is a party, shall survive the Merger and continue in full force and effect in accordance with their terms except in the case terms. For a period of fraud, willful breach or an interested party transaction. From and after six (6) years from the Effective Time, Parent shall, and shall cause the Surviving Company to, maintain in effect (to the fullest extent permitted by Law (including to under applicable Law) the fullest extent authorized or permitted by any amendments to or replacements exculpation, indemnification and advancement of expenses provisions of the DGCL adopted after the date Company’s and any Company Subsidiary’s articles of this Agreement that increase the extent to which a corporation may indemnify its officers incorporation and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, by-laws or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid other organization documents in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or effect immediately prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))or in any agreement, arising out of or pertaining in each case in effect immediately prior to the fact Effective Time and shall not amend, repeal or otherwise modify any such provisions; provided, however, that the Company Indemnified Party is all rights to indemnification in respect of any Action pending or was an officer or director of the Company asserted or any claim made within such period shall continue until the disposition of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days or resolution of receipt by the Surviving Company from the Company Indemnified Party of a request thereforsuch claim.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Madison Square Garden Entertainment Corp.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, directors and officers or employees of the Company and its Subsidiaries Entities as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) Organizational Documents and any indemnification or other similar agreements of the any Company or any of its SubsidiariesEntity, in each case case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in terms, following the case Effective Time, and Parent shall, following the Effective Time, cause the Surviving Corporation and the Company Subsidiaries to perform their respective obligations thereunder. For a period of fraud, willful breach or an interested party transaction. From six (6) years from and after the Effective Time, Parent shall not permit any such indemnification, advancement of expenses or exculpation provision to be amended, repealed or otherwise modified after the fullest extent permitted by Law (including to Effective Time in any manner that would adversely affect the fullest extent authorized or permitted by any amendments to or replacements rights of the DGCL adopted Company Indemnified Parties thereunder, unless any such amendment, repeal or modification is required by applicable Law. Without limiting the foregoing, for a period of six (6) years from and after the date of this Agreement that increase the extent to which a corporation may indemnify its officers Effective Time, Parent and directors) the Surviving Company agrees that it will Corporation shall indemnify and hold harmless each individual who was prior to or is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of any Company Entity and the Company or any heirs and personal representatives of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request each of the Company or any of its Subsidiaries as a director or officer of another Person foregoing (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Personany Company Entity, whether asserted or claimed prior to, at or after the Effective Time. In , to the event of any such Action, each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request thereforfullest extent permitted under applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Esterline Technologies Corp)
Indemnification, Exculpation and Insurance. (a) Parent From and after the East/Toucan Effective Time, Holdco agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or each former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a present director or officer of the Company or any Company Subsidiary and each person who served as a director, officer, member, trustee or fiduciary of its Subsidiaries another corporation, partnership, joint venture, trust, pension or who thereafter commences prior to the Effective Time, serving other employee benefit plan or enterprise if such service was at the request or for the benefit of the Company or any of its Subsidiaries as Company Subsidiary (each, together with such person’s heirs, executors or administrators, a director or officer of another Person (the “Company Indemnified PartiesParty”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrativeadministrative or investigative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the East/Toucan Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request or for the benefit of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, pension or other employee benefit plan or enterprise, whether asserted or claimed prior to, at or after the East/Toucan Effective Time as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) as in effect on the date of this Agreement or in any agreement, a true and complete copy of which agreement has been provided by the Company to Parent prior to the date hereof, to which the Company or any of its Subsidiaries is a party, shall survive the East/Toucan Merger and continue in full force and effect in accordance with their terms. For a period of six years from the East/Toucan Effective Time. In , Holdco shall, and shall cause Toucan Surviving LLC to, maintain in effect the event of any such Actionexculpation, each Company Indemnified Party will be entitled to indemnification and advancement of expenses incurred provisions of the Company’s and any Company Subsidiary’s articles of incorporation and by-laws or other organization documents in effect immediately prior to the defense East/Toucan Effective Time or in any agreement, a true and complete copy of which agreement has been provided by the Company to Parent prior to the date hereof, to which the Company or any of its Subsidiaries is a party, in each case in effect immediately prior to the East/Toucan Effective Time and shall not amend, repeal or otherwise modify any such provisions or the exculpation, indemnification or advancement of expenses provisions of the Toucan Surviving LLC’s certificate of formation or limited liability company agreement in any manner that would adversely affect the rights thereunder of any individual who immediately before the East/Toucan Effective Time was entitled to exculpation, indemnification or advancement of expenses thereunder; provided, however, that all rights to indemnification in respect of any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (each, an “Action”) pending or asserted or any claim made within such period shall continue until the disposition of such Action from the Surviving Company within ten (10) Business Days or resolution of receipt by the Surviving Company from the Company Indemnified Party of a request thereforsuch claim.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Engility Holdings, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) Parent shall cause the Surviving Company agrees that it will Corporation to indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries subsidiaries as a director or officer of another Person person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries subsidiaries as a director or officer of another Personperson or in respect of any acts or omissions in their capacities as such directors of officers occurring prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the same extent as such Indemnified Parties are indemnified as of the date of this Agreement by the Company pursuant to the Company Certificate of Incorporation, the Bylaws of the Company or the governing or organizational documents of any subsidiary of the Company and any indemnification agreements in existence as of the date of this Agreement. In the event of any such Actionclaim, action, suit or proceeding, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days Corporation or Parent to the same extent as such Indemnified Parties are entitled to advance of receipt expenses as of the date of this Agreement by the Surviving Company from pursuant to the Company Indemnified Party Certificate of a request thereforIncorporation, the Bylaws of the Company or the governing or organizational documents of any subsidiary of the Company; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL, the Company Certificate of Incorporation or the Bylaws of the Company, and any indemnification agreements in existence as of the date of this Agreement, to repay such advances if it is ultimately determined that such person is not entitled to indemnification and (ii) Parent shall, and shall cause its subsidiaries to, cooperate in the defense of any such matter. 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 is not 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 and/or the Surviving Corporation, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent and/or the Surviving Corporation, as applicable, assume the obligations set forth in this Section 6.4.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany employee may have under any agreement or Company Plan, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor through the sixth anniversary of the current date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former directorsofficer, officers director or employees employee of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrativeadministrative or investigative, regulatory arising out of or investigative pertaining to (including with respect to i) the fact that the Indemnified Party is or was an officer, director, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, each Company Indemnified Party will shall be entitled to advancement of expenses incurred in the defense of any such Action from Parent or the Surviving Corporation to the fullest extent permitted under applicable Law, the Company Charter and Company Bylaws as at the date hereof within ten (10) 10 Business Days of receipt by Parent or the Surviving Company Corporation from the Company Indemnified Party of a request therefortherefore; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Company Charter or Company Bylaws, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification; provided further, that neither Parent nor the Surviving Corporation shall be required to indemnify or advance expenses to any Indemnified Party in connection with an Action (or part thereof) initiated by such Indemnified Party unless such Action (or part thereof) was authorized by the Company Board.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Hughes Network Systems, LLC)
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany employee may have under any agreement or Company Plan, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor through the sixth (6th) anniversary of the current date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former directorsofficer, officers director or employees employee of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including reasonable attorneys’ fees and disbursementsdisbursements (collectively, “Costs”), incurred in connection with any actual or threatened Action, whether civil, criminal, administrativeadministrative or investigative, regulatory arising out of or investigative pertaining to (including with respect to i) the fact that the Indemnified Party is or was an officer, director or employee of the Company or any of its Subsidiaries or (ii) matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent and in the manner permitted by the DGCL and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Company Indemnified Party will shall be entitled to advancement of expenses incurred in the defense of any such Action from Parent or the Surviving Company within ten (10) Business Days of receipt Corporation to the fullest extent and in the manner permitted by the Surviving Company from DGCL and the Company Charter and Company Bylaws as at the date hereof; provided, that any Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of a request thereforsuch Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to From the Effective Time now existing in favor through the sixth anniversary of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect date on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after which the Effective TimeTime occurs, to the fullest extent permitted by Law (including to the fullest extent authorized Parent shall, or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) shall cause the Surviving Company agrees that it will to, indemnify and hold harmless BBAM, the Manager, and their respective Affiliates, and each individual who is present (as of the date of this Agreement, or who becomes prior to the Effective Time) and former officer, a director or officer employee of the Company or any of its Subsidiaries or who thereafter commences prior to Company, BBAM, the Effective TimeManager, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person and their respective Affiliates (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, disbursements incurred in connection with any actual or threatened Action, whether civil, criminal, administrativeadministrative or investigative, regulatory arising out of or investigative pertaining to the fact that the Indemnified Party is or was a manager, officer, director or employee, of the Company or any of its Subsidiaries (including or, to the extent providing services to or otherwise involved with respect the Company, of BBAM, the Manager or their respective Affiliates), and pertaining to matters any matter existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the same extent such persons are indemnified as of the date of this Agreement by the Company or any of its Subsidiaries pursuant to the Company Charter, Company Bye-laws, or organizational documents of any Company Subsidiary, as at the date hereof or pursuant to indemnification agreements, if any, in existence on the date hereof. In the event of any such Action, (A) each Company Indemnified Party will shall be entitled to advancement of expenses incurred in the defense of any such Action from Parent or the Surviving Company within ten to the same extent such Indemnified Party is indemnified as of the date of this Agreement by the Company or any of its Subsidiaries pursuant to the Company Charter, Company Bye-laws, or organizational documents of any Company Subsidiary as of the date hereof or pursuant to indemnification agreements, if any, in existence on the date hereof; provided, that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the Bermuda Companies Act or the Company Charter or Company Bye-laws, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (10B) Business Days of receipt by neither Parent nor the Surviving Company from shall settle, compromise or consent to the Company entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of a request thereforsuch Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Company shall cooperate in the defense of any such matter.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany employee may have under any agreement or Company Plan, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor through the sixth anniversary of the current date on which the Effective Time occurs, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director or former directors, officers or employees employee of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual pending or threatened Action, whether civil, criminal, administrativeadministrative or investigative, regulatory (i) arising out of, pertaining to, or investigative by reason of the fact that the Indemnified Party is or was an officer, director, employee, fiduciary or agent of the Company or any of its Subsidiaries or, while a director, officer or employee of the Company or its Subsidiaries, is or was serving at the request of the Company or any of its Subsidiaries as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, (including with respect ii) arising out of or pertaining to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as of the date hereof or (iii) in connection with the enforcement of any Indemnified Party’s rights under this Section 5.11 by such Indemnified Party or his or her heirs or legal representatives. In the event of any such pending or threatened Action, including any such Action to enforce any Indemnified Party’s rights under this Section 5.11, (A) each Company Indemnified Party will shall be entitled to advancement of expenses (including attorneys’ fees and expenses) incurred in connection with such Action from Parent and the Surviving Corporation to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as of the date hereof prior to the final disposition of such Action; provided, that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by DGCL or the Company Charter or Company Bylaws, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under this Agreement or any Law, Contract or other source for which indemnification may be available, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents in writing, and (C) the Surviving Corporation shall cooperate in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request thereformatter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Foundation Building Materials, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will HoldCo shall indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company Diamond or Orion or any of its Subsidiaries their subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company Diamond or Orion, as applicable, or any of its Subsidiaries their respective subsidiaries as a director or officer of another Person person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company Diamond or Orion, as applicable, or any of its Subsidiaries their respective subsidiaries or is or was serving at the request of the Company Diamond or Orion, as applicable, or any of its Subsidiaries their respective subsidiaries as a director or officer of another Personperson or in respect of any acts or omissions in their capacities as such directors of officers occurring prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the same extent as such Indemnified Parties are indemnified as of the date of this Agreement by Diamond pursuant to the Diamond Certificate of Incorporation, the By-laws of Diamond or the governing or organizational documents of any subsidiary of Diamond, or by Orion pursuant to the Orion Certificate of Incorporation, the By-laws of Orion or the governing organizational documents of any subsidiary of Orion, as applicable, or and any indemnification agreements in existence as of the date of this Agreement. In the event of any such Actionclaim, action, suit or proceeding, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from HoldCo to the Surviving Company within ten (10) Business Days same extent as such Indemnified Parties are entitled to advance of receipt expenses as of the date of this Agreement by Diamond pursuant to the Diamond Certificate of Incorporation, the By-laws of Diamond or the governing or organizational documents of any subsidiary of Diamond, or by Orion pursuant to the Orion Certificate of Incorporation, the By-laws of Orion or the governing or organizational documents of any subsidiary of Orion, as applicable, and any indemnification agreements in existence as of the date of this Agreement; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL, the Diamond Certificate of Incorporation or the By-laws of Diamond, or the Orion Certificate of Incorporation or the By-laws of Orion, as applicable, and any indemnification agreements in existence as of the date of this Agreement, to repay such advances if it is ultimately determined that such person is not entitled to indemnification and (ii) HoldCo shall, and shall cause its subsidiaries to, cooperate in the defense of any such matter. In the event that HoldCo, Orion Surviving Company from Corporation or Diamond Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and is not the Company Indemnified Party continuing or surviving corporation or entity of a request thereforsuch 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, HoldCo, Orion Surviving Corporation and/or Diamond Surviving Corporation, as applicable, shall cause proper provision to be made so that the successors and assigns of HoldCo, Orion Surviving Corporation and/or Diamond Surviving Corporation, as applicable, assume the obligations set forth in this Section 6.4.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Dow Chemical Co /De/)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries Entities as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) Organizational Documents and in any indemnification or other similar agreements of the any Company or any of its SubsidiariesEntity, in each case case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except (it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and Parent shall cause the Surviving Corporation and the Company Subsidiaries to perform their respective obligations thereunder. Parent shall not permit any such indemnification, advancement of expenses or exculpation provision to be amended, repealed or otherwise modified after the Effective Time in any manner that would adversely affect the case rights of fraudthe Company Indemnified Parties thereunder, willful breach unless any such amendment, repeal or an interested party transactionmodification is required by applicable Law. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers Parent and directors) the Surviving Company agrees that it will Corporation shall indemnify and hold harmless each individual who was prior to or is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of any Company Entity or who was prior to or is as of the Company or any date of its Subsidiaries this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the any Company or any of its Subsidiaries Entity as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened ActionClaim, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated herebyby this Agreement)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the any Company or any of its Subsidiaries Entity or is or was serving at the request of the any Company or any of its Subsidiaries Entity as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such ActionClaim, (i) each Company Indemnified Party will shall be entitled to advancement of expenses incurred in the defense of any such Action Claim from the Surviving Company Parent within ten (10) Business Days of after receipt by the Surviving Company Parent from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by applicable Law or the applicable Company Entity’s Organizational Documents or any applicable indemnification agreement, to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to indemnification and (ii) Parent and the Surviving Corporation shall cooperate in good faith in the defense of any such matter.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, directors and officers or employees of the Company and its Subsidiaries Entities as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) Organizational Documents and any indemnification or other similar agreements of the any Company or any of its SubsidiariesEntity, in each case case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in terms, following the case Effective Time, and Parent shall, following the Effective Time, cause the Surviving Corporation to perform their respective obligations thereunder. For a period of fraud, willful breach or an interested party transaction. From six (6) years from and after the Effective Time, Parent shall not permit any such indemnification, advancement of expenses or exculpation provision to be amended, repealed or otherwise modified after the fullest extent permitted by Law (including to Effective Time in any manner that would adversely affect the fullest extent authorized or permitted by any amendments to or replacements rights of the DGCL adopted Company Indemnified Parties thereunder, unless any such amendment, repeal or modification is required by applicable Law. Without limiting the foregoing, from and after the date of this Agreement that increase the extent to which a corporation may indemnify its officers Effective Time, Parent and directors) the Surviving Company agrees that it will Corporation shall indemnify and hold harmless each individual who was prior to or is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of any Company Entity and the Company or any heirs and personal representatives of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request each of the Company or any of its Subsidiaries as a director or officer of another Person foregoing (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Personany Company Entity, whether asserted or claimed prior to, at or after the Effective Time. In , to the event of any such Action, each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request thereforfullest extent permitted under applicable Law.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it and its Subsidiaries shall, and Parent will indemnify cause the Surviving Company and its Subsidiaries to, jointly and severally, indemnify, defend and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), Party against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit, proceeding or threatened Actioninvestigation, whether civil, criminal, administrativeadministrative or investigative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur arising at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer officer, director or director manager of the Company or any Company Subsidiary or, while an officer, director or manager of its Subsidiaries the Company or any Company Subsidiary, is or was serving at the request of the Company or any of its Subsidiaries a Company Subsidiary as a an officer, director or officer manager of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted to do so by applicable Law. In the event of any such Action, each Company Each Indemnified Party will be entitled to advancement of expenses (including attorneys’ fees) incurred in the defense of any such Action claim, action, suit, proceeding or investigation from the Surviving Company within ten (10) Business Days or its Subsidiaries; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of receipt such advances an undertaking, to the extent required by the Surviving Company DGCL or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law. Without limitation of the foregoing or any other provision of this Section 6.05, for a period of six (6) years from and after the Effective Time, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party, whether provided in the certificate of incorporation or bylaws (or comparable organizational documents) of the Company or any Company Subsidiary or in any indemnification agreement between such Indemnified Party and the Company or any Company Subsidiary as in effect on the date hereof, shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of a request thereforany such Indemnified Party.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Rent a Center Inc De)
Indemnification, Exculpation and Insurance. (a) Parent agrees Xxxxxx and Xxxxxx Sub agree that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or each former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a present director or officer of the Company or any Company Subsidiary and each person who served as a director, officer, member, trustee or fiduciary of its Subsidiaries another corporation, partnership, joint venture, trust, pension or who thereafter commences prior to the Effective Time, serving other employee benefit plan or enterprise if such service was at the request or for the benefit of the Company or any of its Subsidiaries as Company Subsidiary (each, together with such person’s heirs, executors or administrators, a director or officer of another Person (the “Company Indemnified PartiesParty”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrativeadministrative or investigative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)Transactions), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time as provided in their respective certificates of incorporation or bylaws (or comparable organizational documents) as in effect on the date of this Agreement or in any agreement, a correct and complete copy of which agreement has been provided by the Company to Parent prior to the date hereof, to which the Company or any Company Subsidiary is a party, shall survive the Merger and continue in full force and effect in accordance with their terms. For a period of six years from the Effective Time. In , Parent shall cause the event of any such ActionSurviving Company to maintain in effect the exculpation, each Company Indemnified Party will be entitled to indemnification and advancement of expenses incurred provisions of the Company’s and any Company Subsidiary’s certificate of incorporation and bylaws or other organizational documents in effect immediately prior to the defense Effective Time or in any agreement, a correct and complete copy of which agreement has been provided by the Company to Parent prior to the date hereof, to which the Company or any Company Subsidiary is a party, in each case in effect immediately prior to the Effective Time and not to amend, repeal or otherwise modify any such provisions or the exculpation, indemnification or advancement of expenses provisions of the Surviving Company’s certificate of incorporation and bylaws in any manner that would adversely affect the rights thereunder of any individual who immediately before the Effective Time was a Company Indemnified Party; provided, however, that all rights to indemnification in respect of any Action pending or asserted or any claim made within such period shall continue until the disposition of such Action from the Surviving Company within ten (10) Business Days or resolution of receipt by the Surviving Company from the Company Indemnified Party of a request thereforsuch claim.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and for a period of six years after the First Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it Parent will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the First Effective Time, a director or officer of the Company or any of its Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the First Effective Time, serving at the request of the Company Company, as applicable, or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any actual claim or threatened Action, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the First Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another PersonPerson or in respect of any acts or omissions in their capacities as such directors or officers occurring prior to the First Effective Time, whether asserted or claimed prior to, at or after the First Effective TimeTime to the fullest extent permissible under applicable Law and to the fullest extent as such Indemnified Parties are indemnified as of the date of this Agreement by the Company pursuant to the Company Charter, the Company Bylaws or the governing organizational documents of any Subsidiary of the Company, as applicable, and any indemnification Contracts with directors and officers of the Company in existence as of the date of this Agreement and listed in Section 5.4(a) of the Company Disclosure Letter. In the event of any such claim or Action, (i) each Company Indemnified Party will be entitled to advancement of expenses (including attorney’s fees) incurred in the defense of any such claim or Action from Parent to the Surviving Company within ten (10) Business Days fullest extent permissible under applicable Law and to the fullest extent as such Indemnified Parties are entitled to advance of receipt such expenses as of the date of this Agreement by the Surviving Company from pursuant to the Company Charter, the Company Bylaws or the governing or organizational documents of any Subsidiary of the Company, as applicable, and any indemnification Contracts with directors and officers of the Company in existence as of the date of this Agreement and listed in Section 5.4(a) of the Company Disclosure Letter, provided that any Person to whom expenses are advanced provides an undertaking, if and to the extent required by Law, the Company Charter or the Company Bylaws or the governing or organizational documents of any the Company Subsidiary, as applicable, and any indemnification Contracts with directors and officers of the Company in existence as of the date of this Agreement and listed in Section 5.4(a) of the Company Disclosure Letter, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, and (ii) Parent will, and will cause its Subsidiaries to, cooperate in the defense of any such matter. Notwithstanding anything to the contrary in this Section 5.4(a) or elsewhere in this Agreement, Parent and Ultimate Surviving Corporation will not settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim or Action for which indemnification has been sought under this Section 5.4(a) unless such settlement, compromise, consent or termination includes an unconditional release of such Indemnified Party from all liability arising out of a request thereforsuch claim or Action and does not include any admission of liability with respect to such Indemnified Party. In the event that Parent, the First Surviving Corporation, the Ultimate Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not 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, the First Surviving Corporation or Ultimate Surviving Corporation, as applicable, will provide that the successors and assigns of Parent, the First Surviving Corporation or Ultimate Surviving Corporation, as applicable, assume the obligations set forth in this Section 5.4.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany employee may have under any agreement or Company Plan, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor through the sixth anniversary of the current date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws in effect as of the date hereof, each present (as of the Effective Time) and former directors, officers officer or employees director of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, disbursements incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))investigative, arising out of or pertaining to (i) the fact that the Company Indemnified Party is or was an officer officer, director, fiduciary or director agent of the Company or any of its Subsidiaries or is (ii) matters existing or was serving occurring, or services performed by an Indemnified Party at the request of the Company or any of its Subsidiaries as a director Subsidiaries, at or officer of another Personprior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including, for the avoidance of doubt, in connection with (x) the transactions contemplated by this Agreement and (y) actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party. In the event of any such Action, (A) each Company Indemnified Party will shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, provided, that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Company Charter or Company Bylaws, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened Action (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Action from or such Indemnified Party otherwise consents, and (C) the Surviving Company within ten (10) Business Days Corporation shall cooperate in the defense of receipt by the Surviving Company from the Company Indemnified Party of a request thereforany such matter.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany employee may have under any agreement or Company Plan, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor through the sixth anniversary of the current date on which the Effective Time occurs, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director or former directors, officers or employees employee of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual pending or threatened Action, whether civil, criminal, administrativeadministrative or investigative, regulatory (i) arising out of, pertaining to, or investigative by reason of the fact that the Indemnified Party is or was an officer, director, employee, fiduciary or agent of the Company or any of its Subsidiaries or, while a director, officer or employee of the Company or its Subsidiaries, is or was serving at the request of the Company or any of its Subsidiaries as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, (including with respect ii) arising out of or pertaining to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as of the date of this Agreement or (iii) in connection with the enforcement of any Indemnified Party’s rights under this Section 5.11 by such Indemnified Party or his or her heirs or legal representatives. In the event of any such pending or threatened Action, including any such Action to enforce any Indemnified Party’s rights under this Section 5.11, (A) each Company Indemnified Party will shall be entitled to advancement of expenses (including attorneys’ fees and expenses) incurred in connection with such Action from Parent and the Surviving Corporation to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as of the date of this Agreement prior to the final disposition of such Action; provided, that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by DGCL or the Company Charter or Company Bylaws, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification under this Agreement or any Law, Contract or other source for which indemnification may be available, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents in writing, and (C) the Surviving Corporation shall cooperate in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request thereformatter.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts any director or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of employee may have under the Company and its Subsidiaries as provided in their respective certificates of incorporation Constituent Documents, any agreement or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its SubsidiariesPlan, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From from and after the Effective TimeTime through the sixth (6th) anniversary of the date on which the Effective Time occurs, Parent shall, and shall cause the Surviving Corporation to, indemnify and hold harmless, to the fullest extent permitted by under applicable Law (including and Parent Table of Contents shall also advance expenses as incurred to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreementunder applicable Law, or who becomes prior subject to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”immediately following sentence), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement each present and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an each former officer or director of the Company or any of its Subsidiaries (and each Person who may become an officer or is director of the Company or was serving a Company Subsidiary between the date of this Agreement and the Effective Time) (collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or related to such Indemnified Party’s service as a director, officer or employee of the Company or its Subsidiaries or services performed by such persons at the request of the Company or any of its Subsidiaries as a director at or officer of another Personprior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time. In , including (i) the event Merger and the Charter Amendment and the transactions contemplated by this Agreement and (ii) actions to enforce this Section 5.10 or any other indemnification or advancement right of any Indemnified Party. Notwithstanding anything to the contrary herein (but subject to any superior rights contained in the Company Constituent Documents (or, as relevant, those of the applicable Subsidiary of the Company) or applicable indemnification agreements to which any Acquired Company is a party), prior to making any advance in respect of the indemnification obligations set forth in this Section 5.10, the Person who is requesting such Action, each Company Indemnified Party will be advance shall agree to repay such advances if it is ultimately determined that such Person is not entitled to advancement indemnification in respect of expenses incurred in the defense of any matter for which such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request thereforadvance was made.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) From and after the Effective Time, Parent agrees shall, and shall cause the Company and the Surviving Corporation to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company or of a Subsidiary of the Company (each, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any claim, suit, action, proceeding or investigation (whether civil, criminal, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under (A) or (B), at, or at any time prior to, the Effective Time (including any claim, suit, action, proceeding or investigation relating in whole or in part to the transactions contemplated by this Agreement), to the fullest extent permitted under applicable Law, and (ii) assume all rights obligations of the Company and such Subsidiaries to indemnification, advancement the Indemnitees in respect of expenses indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates (x) the Company’s certificate of incorporation or and by-laws and the organizational documents of such Subsidiaries as currently in effect and (or comparable organizational documentsy) and any the form of indemnification or other similar agreements attached as Schedule 7.7(a), which shall survive the consummation of the Company or any of its Subsidiaries, in each case as in effect on the date of transactions contemplated by this Agreement, shall Agreement and continue in full force and effect in accordance with their terms except in respective terms. Without limiting the case of fraudforegoing, willful breach or an interested party transaction. From Parent, from and after the Effective Time, shall cause the certificate of incorporation and by-laws of the Surviving Corporation to contain provisions no less favorable to the fullest extent permitted by Law (including Indemnitees with respect to the fullest extent authorized or permitted by any amendments to or replacements limitation of the DGCL adopted after the date liabilities of this Agreement that increase the extent to which a corporation may indemnify its directors and officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is indemnification than are set forth as of the date of this AgreementAgreement in the Company’s certificate of incorporation and by-laws, which provisions shall not be amended, repealed or who becomes prior to otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, from and after the Effective Time, a director or officer of Parent shall, and shall cause the Company or and the Surviving Corporation to, pay any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person expenses (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred expenses of legal counsel) of any Indemnitee under this Section 7.7 (including in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect enforcing the indemnity and other obligations referred to matters existing or occurring or alleged to occur at or prior in this Section 7.7) as incurred to the Effective Time (including this Agreement and fullest extent permitted under applicable Law, provided that the transactions and actions contemplated hereby)), arising out of or pertaining person to whom expenses are advanced provides an undertaking to repay such advances to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt extent required by the Surviving Company from the Company Indemnified Party of a request thereforapplicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Michael Foods Inc/New)
Indemnification, Exculpation and Insurance. (a) Parent agrees Parent, Merger Sub and Merger LLC agree that all rights to indemnificationexculpation or indemnification arising from, advancement of expenses and exculpation from liabilities for relating to or otherwise in respect of, acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, directors or officers or employees of any of the Company and its Subsidiaries Acquired Companies as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification incorporation, bylaws or other similar agreements of organizational documents shall survive the Company or any of its Subsidiaries, in each case as in effect on Merger and the date of this Agreement, Subsequent Merger and shall continue in full force and effect in accordance with their terms except in the case terms. For a period of fraud, willful breach or an interested party transaction. From and after no less than six (6) years from the Effective Time, to Parent shall cause the fullest extent permitted by Law (including to Surviving Company to, and the fullest extent authorized Surviving Company shall, maintain in effect the exculpation, indemnification and advancement of expenses provisions of each Acquired Company’s certificate of incorporation and bylaws or permitted by any amendments to or replacements similar organizational documents in effect as of the DGCL adopted after the date of this Agreement that increase or in any indemnification agreements of the extent to which a corporation may indemnify its Acquired Companies with any of their respective directors, officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is or employees in effect as of the date of this Agreement, and shall not amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any individuals who becomes prior immediately before the Effective Time were current or former directors, officers or employees of any of the Acquired Companies; provided, however, that all rights to exculpation, indemnification and advancement of expenses in respect of any Action pending or asserted or any claim made within such period shall continue until the final disposition of such Action. (b) Each of Parent and the Surviving Company shall, to the Effective Timefullest extent permitted under applicable Law, a indemnify and hold harmless (and advance funds in respect of each of the foregoing and costs of defense to) each current and former director or officer of the Company or any of its Subsidiaries the Acquired Companies (each, together with such individual’s heirs, executors or who thereafter commences prior to the Effective Timeadministrators, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the an “Company Indemnified PartiesParty”), in each case against all any losses, claims, lossesdamages, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fees and fees, costs and expenses, expenses (including attorneys’ fees and disbursements), incurred judgments, fines and amounts paid in settlement (collectively, “Losses”) in connection with any actual or threatened Action, whether civil, criminal, administrativeadministrative or investigative, regulatory arising out of, relating to or investigative (including in connection with respect to matters existing the fact that such Indemnified Party is or occurring was an officer, director or alleged to occur fiduciary of any of the Acquired Companies at or prior to the Effective Time (including this Agreement Time; provided, however, that the Indemnified Party to whom expenses are advanced provides an undertaking, if and the transactions and actions contemplated hereby)), arising out of or pertaining only to the fact extent required by applicable Law, to repay such advances if it is ultimately determined by a court of competent jurisdiction that the Company such Indemnified Party is not entitled to indemnification for such expenses. No Indemnified Party shall settle, compromise or was an officer or director of consent to the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event entry of any such Action, each Company judgment in any threatened or actual Action for which indemnification could be sought by an Indemnified Party will hereunder unless Parent consents in writing to such settlement, compromise or consent (which consent shall not be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor.unreasonably withheld, conditioned or delayed). 72
Appears in 1 contract
Samples: Agreement and Plan of Merger (Jones Lang Lasalle Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees and Sub agree that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, directors or officers or employees of the Company and its Subsidiaries as provided in their respective certificates certificate of incorporation or by-laws bylaws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this AgreementAgreement shall be assumed by the Surviving Corporation in the Merger, without further action, at the Effective Time, and shall survive the Merger and shall continue in full force and effect in accordance with their terms except in terms, and Parent shall cause the case Surviving Corporation to comply with and honor the foregoing obligations. During the period commencing at the Effective Time and ending on the sixth anniversary of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent degree to which a corporation may indemnify its officers and directors) ), the Surviving Company Corporation agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative Legal Proceeding (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Personperson, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such ActionLegal Proceeding, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action Legal Proceeding from the Surviving Company Corporation within ten fifteen (1015) Business Days of receipt by the Surviving Company Corporation from the Company Indemnified Party of a request therefortherefor accompanied by reasonable supporting documentation; provided, that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Corporation’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to indemnification and (ii) the Surviving Corporation shall cooperate in the defense of any such matter.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) Parent shall cause the Surviving Company agrees that it will Corporation to indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries subsidiaries as a director or officer of another Person person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries subsidiaries as a director or officer of another Personperson or in respect of any acts or omissions in their capacities as such directors of officers occurring prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the same extent as such Indemnified Parties are indemnified as of the date of this Agreement by the Company pursuant to the Company Certificate of Incorporation, the Bylaws of the Company or the governing or organizational documents of any subsidiary of the Company and any indemnification agreements in existence as of the date of this Agreement. In the event of any such Actionclaim, action, suit or proceeding, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days Corporation or Parent to the same extent as such Indemnified Parties are entitled to advance of receipt expenses as of the date of this Agreement by the Surviving Company from pursuant to the Company Indemnified Party Certificate of a request thereforIncorporation, the Bylaws of the Company or the governing or organizational documents of any subsidiary of the Company; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL, the Company Certificate of Incorporation or the Bylaws of the Company, and any indemnification agreements in existence as of the date of this Agreement, to repay such advances if it is ultimately determined that such person is not entitled to indemnification and (ii) Parent shall, and shall cause its subsidiaries to, cooperate in the defense of any such matter. 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 is not 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 and/or the Surviving Corporation, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent and/or the Surviving Corporation, as applicable, assume the obligations set forth in this Section 6.4.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Post-Sale Company and its Subsidiaries Entities as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) Organizational Documents and any written indemnification or other similar agreements Contracts of any Post-Sale Company Entity that are set forth in Section 5.10(a) of the Company or any of its SubsidiariesDisclosure Letter (the “Company Indemnity Agreements”), in each case case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in to the case extent permitted by applicable Law, and Parent shall cause the Surviving Corporation and the other Post-Sale Company Entities to perform their respective obligations thereunder. For a period of fraud, willful breach or an interested party transaction. From six (6) years from and after the Effective Time, Parent shall not permit any indemnification, advancement of expenses or exculpation provision in such Organizational Documents or any Company Indemnity Agreement to be amended, repealed or otherwise modified in any manner that would adversely affect the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements rights of the DGCL adopted Company Indemnified Parties thereunder, unless any such amendment, repeal or modification is required by applicable Law. Without limiting the foregoing, for a period of six (6) years from and after the date of this Agreement that increase the extent to which a corporation may indemnify its officers Effective Time, Parent and directors) the Surviving Company agrees that it will Corporation shall indemnify and hold harmless each individual who is a current or former director, officer or employee of any Post-Sale Company Entity and each individual who becomes, prior to the Effective Time, a director, officer or employee of any Post-Sale Company Entity or who is, as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the any Post-Sale Company or any of its Subsidiaries Entity as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable and documented fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened ActionClaim, whether civil, criminal, administrativeadministrative or investigative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement Agreement, the Merger and the other transactions and actions contemplated hereby)by this Agreement), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the any Post-Sale Company or any of its Subsidiaries Entity or is or was serving at the request of the any Post-Sale Company or any of its Subsidiaries Entity as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under the applicable Organizational Document and required under the applicable Company Indemnity Agreement, if any. In the event of any such ActionClaim, each Company Indemnified Party will shall be entitled to advancement of reasonable and documented expenses incurred in the defense of any such Action Claim from Parent to the Surviving fullest extent permitted under the applicable Organizational Document and required under the applicable Company within ten (10) Business Days of Indemnity Agreement, if any, after receipt by the Surviving Company Parent from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification. Any determination required to be made with respect to whether any Company Indemnified Party’s conduct complies with an applicable standard under the applicable Organizational Documents of the Post-Sale Company Entities or applicable Company Indemnity Agreements, as the case may be, shall be made by independent legal counsel selected by the Company Indemnified Party and reasonably acceptable to Parent.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its the Company Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transactionterms. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”“), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (x) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to indemnification and (y) the Surviving Company shall cooperate in the defense of any such matter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Warnaco Group Inc /De/)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan that has been disclosed or made available to Parent agrees that all rights to indemnificationas of the date hereof, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each current (as of the Effective Time) and former officer, director or former directors, officers or employees employee of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and fees, costs and expenses, including actual attorneys’ fees and disbursementsdisbursements (collectively, “Costs”), incurred in connection with any actual or threatened Action, whether civil, criminal, administrativeadministrative or investigative, regulatory arising out of or investigative pertaining to (including with respect to i) the fact that the Indemnified Party is or was an officer, director, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, each Company Indemnified Party will shall be entitled to advancement of expenses incurred in the defense of any such Action from Parent or the Surviving Corporation to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof within ten (10) Business Days of receipt by Parent or the Surviving Company Corporation from the Company Indemnified Party of a request therefor. Notwithstanding anything to the contrary herein (but subject to any superior rights contained in the Company Charter, Company Bylaws or applicable indemnification agreements to which any Acquired Company is a party), prior to making any payment or advance in respect of the indemnification obligations set forth in this Section 6.10, the Person that is requesting such indemnification or advance shall agree to repay such payments or advances if it is ultimately determined that such Person is not entitled to indemnification.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, the Surviving Corporation will, and Parent will cause the Surviving Corporation to, (i) indemnify, defend and hold harmless, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its applicable Law, all past and present directors and officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company and any Company Subsidiary and all fiduciaries under any Company Benefit Plan (each, together with such person’s heirs, executors or any of its Subsidiaries or who thereafter commences prior to the Effective Timeadministrators, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified PartiesParty”)) against any costs, against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, expenses (including reasonable attorneys’ fees and expenses and disbursements), incurred in connection with judgments, fines, losses, claims, damages or liabilities to the extent related to any actual claim, action, suit, proceeding or threatened Actioninvestigation, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))investigative, arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director or officer or director of the Company or any of its the Company Subsidiaries or a fiduciary under any Company Benefit Plan or is or was serving at the request of the Company or any of its the Company Subsidiaries as a director or officer of another Personany other corporation, limited liability company, partnership, joint venture, trust or other business or non-profit enterprise (including any Company Benefit Plan) at or prior to the Effective Time whether asserted or claimed prior to, at or after the Effective TimeTime (including with respect to acts or omissions occurring in connection with the Transaction Agreements and the consummation of the Transactions). In Subject to applicable Law, the event Surviving Corporation will, and Parent will cause the Surviving Corporation to, pay the fees and expenses of any such Action, each a Company Indemnified Party will be entitled to advancement (including reasonable attorneys’ fees and expenses and disbursements) in advance of expenses incurred in the defense final disposition of any action, suit, proceeding or investigation that is the subject of the right to indemnification under this Section 6.04(a); provided, however, that such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party undertakes to reimburse the Surviving Corporation for all amounts so advanced if a court of competent jurisdiction determines by a request thereforfinal, nonappealable order that such Company Indemnified Party is not entitled to indemnification.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Reynolds American Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the any current or former directors, officers officer or employees of director may have under the Company and its Subsidiaries as provided in their respective certificates of incorporation Charter or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case Bylaws as in effect on the date of this the Original Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after from the Effective Time, to Time through the fullest extent permitted by Law sixth (including to the fullest extent authorized or permitted by any amendments to or replacements 6th) anniversary of the DGCL adopted after date on which the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) Effective Time occurs, the Surviving Company agrees that it will Corporation shall indemnify and hold harmless each individual who is current (as of the date of this Agreement, or who becomes prior to the Effective Time, a ) and each former officer and director or officer of the Company or from and against any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person and all loss and liability suffered and expenses (the “Company Indemnified Parties”including attorneys’ fees), against all claims, losses, liabilities, damages, judgments, inquiries, fines, fines and amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, reasonably incurred by such person in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))investigative, arising out of or pertaining to the fact that the Company Indemnified Party indemnified Person is or was an officer officer, director, employee or director fiduciary of the Company or any of its Subsidiaries at or is or was serving at prior to the request of the Company or any of its Subsidiaries as a director or officer of another PersonEffective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would be permitted under applicable Law and required or permitted under the Company Charter or Company Bylaws (or, as relevant, those of the applicable Subsidiary of the Company) as at the date of the Original Agreement. In the event of any such Action, each Company Indemnified Party will indemnified Person shall be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Corporation to the fullest extent that the Company within ten would be permitted under applicable Law and the Company Charter or Company Bylaws as at the date of the Original Agreement. Notwithstanding anything to the contrary herein (10but subject to any superior rights contained in the Company Charter or Company Bylaws (or, as relevant, those of the applicable Subsidiary of the Company) Business Days or applicable indemnification agreements to which the Company or its Subsidiaries, as applicable, is a party), prior to making any payment or advance in respect of receipt the indemnification obligations set forth in this Section 6.8, the Person who is requesting such advance shall provide a written affirmation by such Person of a good faith belief that the criteria for indemnification set forth under applicable Law have been satisfied and a written undertaking by such Person to repay all amounts so paid or reimbursed by the Surviving Company from Corporation, if it is ultimately determined that the criteria for indemnification have not been satisfied in connection with any threatened, pending, or completed civil, criminal, administrative, arbitration or investigative proceeding to which such Person is, or is threatened to be, made a party by reason of the former or present official capacity of such Person. No such indemnified Person shall settle, compromise or consent to the entry of any judgment in any threatened or actual Action for which indemnification could be sought by such indemnified Person hereunder unless Parent consents in writing to such settlement, compromise or consent (which consent shall not be unreasonably withheld, conditioned or delayed). Surviving Corporation agrees to continue and not to repeal or modify, and agree to include, to the extent permitted by applicable Law, in the charter documents for the Surviving Corporation, exculpatory provisions currently existing in the Company Indemnified Party of a request thereforCharter (or their substantial equivalent) eliminating personal liability for the Company’s directors to the extent permissible under the CGCL.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cardiogenesis Corp /CA)
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights any Person may have under any Company Plan, from the Closing Date through the sixth anniversary of the date on which the Closing Date occurs, Buyer shall cause the Company to indemnification, advancement indemnify and hold harmless each present (as of expenses and exculpation from liabilities for acts or omissions occurring at or immediately prior to the Effective Time now existing in favor of the current Closing) and former officer, director, employee or former directors, officers or employees agent of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified PartiesIndividuals”), ) against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit, proceeding or threatened Actioninvestigation, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))investigative, arising out of or pertaining to the fact that the Company Indemnified Party Individual is or was an officer officer, director, employee or director agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another PersonSubsidiaries, whether asserted or claimed prior to, at or after the Effective TimeClosing, to the extent provided or permitted under the existing certificate of incorporation and bylaws (or equivalent governing documents) of each of the Company and its Subsidiaries and to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit, proceeding or investigation, (x) each Company Indemnified Party Individual will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit, proceeding or investigation from Buyer or the Surviving Company within ten (10) Business Days of receipt by the Surviving Company Buyer from the Company Indemnified Party Individual of a request therefor, (y) neither Buyer nor the Company shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Individual hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Individual from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Individual otherwise consents and (z) the Buyer and Company shall cooperate in the defense of any such matter.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany employee may have under any agreement or Company Plan, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Company Merger Effective Time now existing in favor through the sixth anniversary of the current date on which the Company Merger Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Company Merger Effective Time) and former directorsofficer, officers director or employees employee of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, disbursements incurred in connection with any actual or threatened Action, whether civil, criminal, administrativeadministrative or investigative, regulatory arising out of or investigative pertaining to (including with respect to matters existing i) the fact that the Indemnified Party is or occurring was an officer, director, employee, fiduciary or alleged to occur agent of the Company or any of its Subsidiaries at or prior to the Company Merger Effective Time or (ii) matters existing or occurring at or prior to the Company Merger Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Company Merger Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Action, (A) each Company Indemnified Party will shall be entitled to advancement of expenses incurred in the defense of any such Action from Parent or the Surviving Company within ten Corporation to the fullest extent permitted under applicable Law (10provided, that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by DGCL to repay such advances if it is ultimately determined that such Person is not entitled to indemnification), (B) Business Days of receipt by neither Parent nor the Surviving Company from Corporation shall settle, compromise or consent to the Company entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of a request thereforsuch Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Manning & Napier, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws bylaws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, Company Subsidiaries shall continue in full force and effect in accordance with their terms except in (it being agreed that after the case of fraudClosing such rights shall be mandatory rather than permissive, willful breach or an interested party transactionif applicable), and Parent shall cause the Company and the Company Subsidiaries to perform its obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who was prior to or is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its the Company Subsidiaries or who was prior to or is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (x) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) 10 Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the CBCA, the Surviving Company’s certificate of incorporation or bylaws (or comparable organizational documents) or any applicable indemnification agreement, to repay such advances if it is ultimately determined by final non-appealable adjudication that such person is not entitled to indemnification and (y) the Surviving Company shall cooperate in the defense of any such matter.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees Without limiting any additional rights that all rights to indemnificationany employee may have under any agreement or Company Plan, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor through the sixth anniversary of the current date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former directorsofficer, officers director or employees employee of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”Parties “), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursementsdisbursements (collectively, “Costs “), incurred in connection with any actual or threatened Action, whether civil, criminal, administrativeadministrative or investigative, regulatory arising out of or investigative pertaining to (including with respect to i) the fact that the Indemnified Party is or was an officer, director, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, each Company Indemnified Party will shall be entitled to advancement of expenses incurred in the defense of any such Action from Parent or the Surviving Corporation to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof within ten (10) Business Days of receipt by Parent or the Surviving Company Corporation from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by DGCL or the Company Charter or Company Bylaws, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification; provided further, that neither Parent nor the Surviving Corporation shall be required to indemnify or advance expenses to any Indemnified Party in connection with an Action (or part thereof) initiated by such Indemnified Party unless such Action (or part thereof) was authorized by the Board of Directors.
Appears in 1 contract
Samples: Agreement and Plan of Merger (O Reilly Automotive Inc)
