Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all rights to indemnification, exculpation, and advancement of expenses existing in favor of the current or former directors and officers of the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law. (b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder. (c) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation assumes the obligations set forth in this Section 5.4.
Appears in 8 contracts
Samples: Merger Agreement (Steinberg Michael), Merger Agreement (RiverRoad Capital Partners, LLC), Merger Agreement (Sagrera Ricardo A.)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree agrees that all rights to indemnification, exculpation, and 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 and or officers of the Company as provided in and the Company Organizational Documents, employment agreements, Subsidiaries to the fullest extent provided by their respective certificates of incorporation or elsewhere bylaws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of the Company Subsidiaries as in effect as of the date of this Agreement in connection with liabilities for acts or omissions occurring at or prior to the Effective Time, including in respect of shall survive the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations in accordance with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Lawtheir terms.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parentsubsequent to the Merger, the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person Person, then, and in each such case, Parent the Surviving Corporation shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes assume the obligations set forth in this Section 5.46.9.
(c) For a period of six (6) years from the Effective Time, Parent shall procure that the Surviving Corporation shall maintain in effect the exculpation, indemnification and advancement of expenses equivalent to the provisions of the Company Certificate of Incorporation with respect to acts or omissions occurring prior to the Effective Time and shall not amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any indemnified Person.
(d) Prior to or at the Effective Time, the Company shall purchase a six (6)-year prepaid “tail” policy, with terms, conditions, retentions and limits of liability that are substantially equivalent to the coverage provided under the Company’s existing policies of directors’ and officers’ liability insurance and fiduciary liability insurance, with respect to matters arising on or before the Effective Time (including in connection with this Agreement and the transactions or actions contemplated by this Agreement), and Parent shall cause such policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Surviving Corporation; provided, however, that the Company shall not pay or agree to pay, and the Surviving Corporation shall not be required to pay, in the aggregate in excess of 300% of the last annual premium paid by the Company prior to the date of this Agreement in respect of such “tail” policy, and if the cost of such “tail” policy would otherwise exceed such maximum amount, the Company shall purchase as much coverage as reasonably practicable up to such maximum amount.
(e) The provisions of this Section 6.9 shall survive consummation of the Merger and are intended to be for the benefit of, and will be enforceable by, each current or former director or officer of the Company, his or her heirs and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.
Appears in 4 contracts
Samples: Merger Agreement (Markforged Holding Corp), Merger Agreement (Nano Dimension Ltd.), Merger Agreement (Desktop Metal, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent The Surviving Pubco, from and Merger Sub agree that all rights after the Closing Date through the sixth (6th) anniversary of the Closing Date, shall cause (i) the Organizational Documents of each Acquired Company and Acquiror Company to indemnification, exculpation, and advancement of expenses existing in favor of contain provisions no less favorable to the current or former directors directors, managers, officers or employees of such Acquired Company or Acquiror Company (collectively, “D&O Indemnitees”) with respect to limitation of certain liabilities, advancement of expenses and officers indemnification than are set forth as of the Company as provided date of this Agreement in the Organizational Documents of such Acquired Company Organizational Documentsor Acquiror Company, employment agreementsas applicable, which provisions in each case shall not be amended, repealed or elsewhere for otherwise modified in a manner that would adversely affect the rights thereunder of the D&O Indemnitees with respect to any acts or omissions occurring at or prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable LawClosing.
(b) For Prior to the Closing, the Company may obtain up to six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms “tail” coverage with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of Acquired Companies’ directors’ and officers’ liability insurance policies with coverage amounts, terms and fiduciary liability insurance maintained by the Company with respect conditions substantially similar to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% those of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of Acquired Companies’ directors’ and officers’ liability insurance policies in effect as of the date hereof and fiduciary covering each D&O Indemnitee covered by the Acquired Companies’ directors’ and officers’ liability insurance policies in effect as of the date hereof. Prior to the Closing, Parent may obtain up to six (6) years of “tail” coverage with respect to the “Base Amount”)Acquiror Companies’ directors’ and officers’ liability insurance policies with coverage amounts, terms and if such premiums for conditions substantially similar to those of the Acquiror Companies’ directors’ and officers’ liability insurance policies in effect as of the date hereof and covering each D&O Indemnitee covered by the Acquiror Companies’ directors’ and officers’ liability insurance policies in effect as of the date hereof. The Surviving Pubco shall and shall cause the Surviving Company to maintain each such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal policy and not take any action to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of adversely modify or terminate any such “tail” policies, subject to such policy being fully prepaid, including with respect to during the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderapplicable tail period thereof.
(c) The provisions of this Section 6.4: (i) are intended to be for the benefit of, and shall be enforceable by, each D&O Indemnitee, his or her heirs and his or her Representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract or otherwise.
(d) In the event that Parent, the Surviving Corporation Pubco, any Acquired Company, any Acquiror Company or any of its their respective successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger or (ii) transfer transfers all or substantially all of its properties and assets to any Person Person, then, and in each either such case, Parent the Surviving Pubco shall cause proper provision use commercially reasonable efforts to be made so ensure that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Pubco or such Acquired Company or Acquiror Company, as the case may be, shall assume, at and as of the closing of the applicable transaction referred to in this Section 6.4(d), all of the obligations set forth in this Section 5.46.4.
(e) The obligations of the Surviving Pubco under this Section 6.4 shall not be terminated or modified in such a manner as to materially and adversely affect any D&O Indemnitee to whom this Section 6.4 applies without the consent of the affected D&O Indemnitee (it being expressly agreed that the D&O Indemnitees to whom this Section 6.4 applies shall be third party beneficiaries of this Section 6.4).
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Thunder Bridge Acquisition LTD), Agreement and Plan of Merger (Thunder Bridge Acquisition LTD), Agreement and Plan of Merger (Thunder Bridge Acquisition LTD)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree agrees that all rights to indemnification, exculpation, and 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 and or officers of the Company and the Company Subsidiaries (each, an “Indemnified Person”) as provided in their respective articles of incorporation or code of regulations (or comparable organizational documents) and any indemnification or other similar agreements of the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect any of the Merger TransactionsCompany Subsidiaries, in each case as in effect on the date of this Agreement, shall be assumed by Parent in the Merger, without further action, as of the Effective Time and performed by shall survive the Surviving Corporation Merger and shall continue in full force and effect until the later in accordance with their terms for a period of not less than six years after following the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable LawTime.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation Parent or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person Person, then, and in each such case, Parent shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes assume the obligations set forth in this Section 5.46.05 contemporaneous with the closing of any such consolidation, merger, transfer or conveyance.
(c) At or prior to the Effective Time, the Company shall purchase a fully prepaid, non-cancellable, non-amendable and non- refundable “tail” directors’ and officers’ liability insurance policy for the Company and the Company Subsidiaries and their current and former directors, officers and employees who are currently covered by the directors’ and officers’ liability insurance coverage currently maintained by the Company or the Company Subsidiaries in a form reasonably acceptable to the Company that shall provide such directors, officers and employees with coverage for six years following the Effective Time of not less than the existing coverage and have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance coverage currently maintained by the Company or the Company Subsidiaries, except that in no event shall the Company pay with respect to such “tail” policy more than 300% of the aggregate annual premium payable by the Company for such insurance policy for the year ended December 31, 2019 (the “Maximum Amount”), and if the Company is unable to obtain the insurance required by this Section 6.05(c) for an amount that is equal to or less than the Maximum Amount, it shall obtain as much comparable “tail” insurance as possible for the years within such six-year period for an amount equal to the Maximum Amount. The “tail” policy obtained pursuant to this Section 6.05(c) shall not be amended, modified, cancelled or revoked by the Company, Parent or the Surviving Corporation.
(d) The provisions of this Section 6.05 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Indemnified Person), his or her heirs and his or her representatives and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise, including under the terms of the respective articles of incorporation or code of regulations or comparable organizational documents of the Company and the Company Subsidiaries.
Appears in 4 contracts
Samples: Merger Agreement (Ares Management LLC), Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Cincinnati Bell Inc)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree agrees that all rights to indemnification, exculpation, indemnification and advancement of expenses 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 and or officers of the Company and its subsidiaries as provided in their respective articles of organization or by-laws (or comparable organizational documents) and any indemnification agreements of the Company Organizational Documents(as each is in effect on the date hereof), employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect existence of the Merger Transactionswhich does not constitute a breach of this Agreement, shall be assumed and performed by the Surviving Corporation in the Merger, without further action, as of the Effective Time and shall survive the Merger and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations in accordance with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after the Effective Time, Parent shalltheir terms, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain honor all such policies in full force and effect for their full term, and continue to honor the obligations thereunderrights.
(cb) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person person, or Parent otherwise dissolves the Surviving Corporation, then, and in each such case, Parent shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes assume the obligations set forth in this Section 5.46.06.
(c) The Surviving Corporation shall, at its option, for a period of not less than six years after the Effective Time, either (i) maintain the Company's current directors' and officers' liability insurance covering acts or omissions occurring at or prior to the Effective Time ("D&O Insurance") with respect to those persons who are currently covered by the Company's directors' and officers' liability insurance policy on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereof or (ii) cause to be provided coverage no less favorable to such directors or officers, as the case may be, than the D&O Insurance, in each case so long as the annual premium therefor would not be in excess of 150% of the last annual premium paid for the D&O Insurance prior to the date of this Agreement (such 150% amount the "Maximum Premium"); provided that if the annual premium for such coverage exceeds the Maximum Premium, Parent shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Premium. If the existing or substituted directors' and officers' liability insurance expires, is terminated or canceled during such six-year period, the Surviving Corporation will obtain as much D&O Insurance as can be obtained for the remainder of such period for an annualized premium not in excess of the Maximum Premium. The Company represents that the Maximum Premium is $641,000.
(d) The provisions of this Section 6.06 (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.
Appears in 4 contracts
Samples: Merger Agreement (Netratings Inc), Merger Agreement (Netratings Inc), Merger Agreement (Netratings Inc)
Indemnification, Exculpation and Insurance. (a) Parent Each of the Company and Merger Sub agree LLC agrees that all rights to indemnification, exculpation, indemnification and advancement of expenses exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time which rights are now existing in favor of the current or former trustees, directors or officers of CEI and the CEI Subsidiaries or NU and the NU Subsidiaries, as the case may be, as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) shall survive the Mergers and shall continue in full force and effect in accordance with their terms (provided that in any event all such rights shall continue for a period of at least six years after the Effective Time). In addition, from and after the Effective Time, trustees, directors and officers of CEI or NU or their respective subsidiaries who become directors or officers of the Company will be entitled to the indemnity rights and protections afforded to directors and officers of the Company as provided in Company.
(b) For six years after the Effective Time, the Company Organizational Documentsshall maintain in effect the trustees', employment agreements, or elsewhere for directors' and officers' liability (and fiduciary) insurance policies currently maintained by NU and CEI covering acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person those persons who are currently covered by the Company’s CEI's and NU's respective trustees', directors' and officers’ and directors’ liability and fiduciary ' liability insurance policies on terms with respect to such coverage and amount no less favorable than those of such policies the relevant policy in effect on the date hereofof this Agreement. The provisions of the immediately preceding sentence shall If such insurance coverage cannot be deemed to have been satisfied if, obtained at or prior to the Effective Timeall, the Company or Parent (on behalf of shall maintain the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current most advantageous policies of trustees', directors’ ' and officers’ liability ' insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderobtainable.
(c) In the event that Parent, the Surviving Corporation Company or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers all or substantially all of its properties and assets to any Person person, then, and in each either such case, Parent shall cause proper provision to shall be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Company shall assume the obligations set forth in this Section 5.45.08.
(d) The provisions of Section 5.08(a) (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.
(e) The indemnified parties as a group may retain only one law firm with respect to each related matter except to the extent such law firm would have, under applicable standards of professional conduct then prevailing under the laws of the applicable State, a conflict of interest in representing any particular indemnified party.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Northeast Utilities System), Merger Agreement (Northeast Utilities System), Agreement and Plan of Merger (Consolidated Edison Inc)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that shall cause the Surviving Corporation to assume the obligations with respect to all rights to indemnificationindemnification and exculpation from liabilities, exculpation, and including advancement of expenses expenses, for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors and or officers of the Company as provided in the Company Organizational DocumentsArticles, employment agreementsthe Company By-laws or any indemnification Contract between such directors or officers and the Company (in each case, or elsewhere for acts or omissions occurring prior to as in effect on the date hereof), without further action, as of the Effective Time, including in respect of Time and such obligations shall survive the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations in accordance with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Lawtheir terms.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and other assets to any Person person, then, and in each such case, Parent shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes shall expressly assume the obligations set forth in this Section 5.45.05. In the event (A) the Surviving Corporation transfers any material portion of its assets, in a single transaction or in a series of transactions or (B) Parent takes any action to materially impair the financial ability of the Surviving Corporation to satisfy the obligations referred to in Section 5.05(a), Parent will either guarantee such obligations or take such other action to insure that the ability of the Surviving Corporation, legal and financial, to satisfy such obligations will not be diminished in any material respect.
(c) For six years after the Effective Time, Parent shall maintain (directly or indirectly through the Company’s existing insurance programs) in effect the Company’s current directors’ and officers’ liability insurance in respect of acts or omissions occurring at or prior to the Effective Time, covering each person currently covered by the Company’s directors’ and officers’ liability insurance policy (a complete and accurate copy of which has been heretofore delivered to Parent), on terms with respect to such coverage and amounts no less favorable than those of such policy in effect on the date hereof; provided, however, that Parent may (i) substitute therefor policies of Parent containing terms with respect to coverage (including as coverage relates to deductibles and exclusions) and amounts no less favorable to such directors and officers or (ii)request that the Company obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective Time); provided, further, that in satisfying its obligation under this Section 5.05(c), neither the Company nor Parent shall be obligated to pay more than in the aggregate the amount set forth in Section 5.05(c) of the Company Disclosure Schedule to obtain such coverage. It is understood and agreed that in the event such coverage cannot be obtained for such amount or less in the aggregate, Parent shall only be obligated to provide such coverage as may be obtained for such aggregate amount.
(d) The provisions of this Section 5.05 (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract or otherwise.
Appears in 3 contracts
Samples: Merger Agreement (Boston Scientific Corp), Merger Agreement (Boston Scientific Corp), Merger Agreement (Boston Scientific Corp)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub The parties hereto agree that all rights to indemnification, exculpation, indemnification and advancement of expenses 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 and or officers of the Company and its Subsidiaries as provided in the Company Organizational Documents, employment agreements, their respective articles of incorporation or elsewhere for acts by-laws (or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, similar organizational documents) shall be assumed and performed 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 until the later of six years after the Effective Time or the expiration of the applicable statute of limitations in accordance with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Lawtheir terms.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all its properties and assets to any Person person, then, and in each such case, Parent shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes assume the obligations set forth in this Section 5.45.05.
(c) For not less than six years after the Effective Time, Parent shall maintain in effect the Company's current directors' and officers' liability insurance covering each person currently covered by the Company's directors' and officers' liability insurance policy for acts or omissions occurring prior to the Effective Time on terms with respect to coverage and amounts that are no less favorable in any material respect to such directors and officers than those of such policy as in effect on the date of this Agreement; PROVIDED, HOWEVER, that (i) Parent may substitute therefor policies of a reputable insurance company the material terms of which, including coverage and amount, are no less favorable in any material respect to such directors and officers than the insurance coverage otherwise required under this Section 5.05(c) and (ii) in no event shall Parent be required to pay aggregate premiums for insurance under this Section 5.05(c) in excess of 200% of the amount of the aggregate premiums paid by the Company in respect of such coverage for the calendar year 1999; PROVIDED FURTHER, HOWEVER, that Parent shall nevertheless be obligated to provide such coverage as may be obtained for such 200% amount.
(d) The provisions of this Section 5.05 are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives.
Appears in 3 contracts
Samples: Merger Agreement (Pearson PLC), Merger Agreement (National Computer Systems Inc), Merger Agreement (Pn Acquisition Subsidiary Inc)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all rights to indemnification, exculpation, and 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 and or officers of the Company and its Subsidiaries as provided in their respective certificate of incorporation or bylaws (or comparable organizational documents) and any indemnification or other agreements of the Company Organizational Documentsas in effect on the date of this Agreement shall be assumed by the Surviving Corporation in the Merger, employment agreementswithout further action, or elsewhere for acts or omissions occurring prior to at the Effective Time, including in respect of and shall survive the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations in accordance with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after the Effective Time, Parent shalltheir terms, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force comply with and effect for their full term, and continue to honor the obligations thereunderforegoing obligations.
(cb) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all its properties and assets to any Person person, or if Parent dissolves the Surviving Corporation, then, and in each such case, Parent shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes assume the obligations set forth in this Section 5.45.05.
(c) Parent shall obtain, or cause to be obtained, as of the Effective Time, a “tail” insurance policy with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance covering each person currently covered by the Company’s directors’ and officers’ liability insurance policy for acts or omissions occurring prior to the Effective Time on terms that are no less favorable than those of such policy of the Company in effect on the date of this Agreement, which insurance shall, prior to the Closing, be in effect and prepaid for such six (6)-year period; provided that in no event shall Parent or the Surviving Corporation be required to pay, with respect to the entire six (6)-year period following the Effective Time, premiums for insurance under this Section 5.05(c) which in the aggregate exceed 300% of the aggregate premiums paid by the Company for the period in its most recent fiscal year for such purpose; provided that Parent shall nevertheless be obligated to provide such coverage, with respect to the entire six (6)-year period following the Effective Time, as may be obtained for such 300% amount.
(d) The provisions of this Section 5.05 (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Red Hat Inc), Merger Agreement (International Business Machines Corp)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that shall, to the fullest extent permitted by law, cause the Surviving Corporation to assume all of the Company's obligations with respect to all rights to indemnification, exculpation, indemnification and advancement of expenses 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 and or officers of the Company as provided in the Company Organizational DocumentsCharter, employment agreementsthe Company Bylaws or any indemnification agreement between such directors or officers and the Company (in each case, or elsewhere for acts or omissions occurring prior to as in effect on the date hereof), without further action, as of the Effective Time, including in respect of and such obligations shall survive the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations in accordance with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Lawtheir terms.
(b) To the extent not advanced by applicable insurance carriers, Parent shall, to the fullest extent permitted by applicable law, cause the Surviving Corporation to advance funds for expenses (including reasonable attorney's fees) incurred by a director in defending a civil or criminal action, suit or proceeding relating to the indemnification obligations referenced in the immediately preceding sentence in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director to repay such amount if it shall be ultimately determined that he or she is not entitled to the indemnification referenced in the immediately preceding sentence.
(c) For a period of six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies be maintained in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ ' and officers’ liability insurance and fiduciary ' liability insurance maintained by the Company (provided that Parent may substitute therefor policies provided or extended by Parent or the Surviving Corporation, at the sole election of Parent, with reputable and financially sound carriers of at least the same coverage and amounts containing terms and conditions which are no less advantageous in the aggregate) with respect to matters claims arising from or related to facts or events which occurred at or prior to before the Effective Time; provided, except however, that Parent or the Company may Surviving Corporation shall not commit or spend on be obligated to make annual premium payments for such “tail” policies annual insurance to the extent such premiums in excess of exceed 300% of the annual premiums paid as of the date hereof by the Company for such insurance (such 300% amount, the "Maximum Premium"). If such insurance coverage cannot be obtained at all, or can only be obtained at an annual premium in its last full fiscal year prior to excess of the date hereof for Maximum Premium, Parent shall maintain the Company’s current policies most advantageous policies, or as determined by Parent in good faith, of directors’ ' and officers’ liability ' insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums obtainable for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderMaximum Premium.
(cd) In the event that Parent, the Surviving Corporation or any The provisions of its successors or assigns shall this Section 5.05 (i) consolidate with are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or merge into any other Person her heirs and shall not be the continuing his or surviving corporation or entity of such consolidation or merger or her representatives and (ii) transfer all or substantially all its properties and assets to any Person thenare in addition to, and not in each substitution for, any other rights to indemnification or contribution that any such case, Parent shall cause proper provision to be made so that the successor and assign of Parent person may have by contract or the Surviving Corporation assumes the obligations set forth in this Section 5.4otherwise.
Appears in 3 contracts
Samples: Merger Agreement (International Speedway Corp), Merger Agreement (International Speedway Corp), Merger Agreement (Action Performance Companies Inc)
Indemnification, Exculpation and Insurance. (a) Parent VMware and Merger Sub agree that all rights to indemnification, exculpation, and advancement of expenses indemnification existing in favor of the current or former directors and officers (an “Indemnified Person”) of the Company Pivotal as provided in the Company Organizational DocumentsPivotal Charter, employment agreementsPivotal Bylaws or any agreement set forth in section 5.9(a) of the Pivotal Disclosure Letter of any Indemnified Person with Pivotal or any of its Subsidiaries regarding elimination of liability, indemnification or elsewhere advancement of Table of Contents expenses as in effect on the date of this Agreement for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, Time shall be assumed and performed by the Surviving Corporation (which VMware shall cause the Surviving Corporation to honor and perform) and shall continue in full force and effect until the later of six years after following the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against such directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) . For six (6) years after the Effective Time, Parent VMware shall cause to be maintained in effect provisions in the Surviving Corporation’s certificate of incorporation and bylaws (or in such documents of any successor to the business of the Surviving Corporation) regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses that are no less advantageous to the intended beneficiaries than the corresponding provisions in existence on the date of this Agreement.
(b) At or prior to the Effective Time, Pivotal shall, and or if Pivotal is unable to, VMware shall cause the Surviving Corporation to, maintain officers’ obtain and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before fully pay the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) premium for a six-year prepaid non-cancelable “tail” policies policy from one or more insurance carriers with the same or better credit rating as Pivotal’s current insurance carrier on terms and conditions providing coverage retentions, limits and other material terms that are no less favorable than the coverage provided under the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (“D&O Insurance”) maintained by the Company Pivotal with respect to matters arising at or prior to the Effective Time and with a claims reporting or discovery period of at least six years from the Effective Time, except that subject to the Company may not commit exception described in the next sentence. If Pivotal or spend on the Surviving Corporation should for any reason fail to obtain such “tail” policy as of the Effective Time, the Surviving Corporation shall continue to maintain in effect, for a period of at least six years from and after the Effective Time, the D&O Insurance in place as of the date hereof with Pivotal’s current insurance carriers or with one or more insurance carriers with the same or better credit rating as Pivotal’s current insurance carrier with respect to D&O Insurance with terms, conditions, retentions and limits of liability that are no less favorable than the coverage provided under Pivotal’s existing policies annual premiums as of the date hereof, or the Surviving Corporation shall purchase from Pivotal’s current insurance carriers or from one or more insurance carriers with the same or better credit rating as Pivotal’s current insurance carriers with respect to D&O Insurance comparable D&O Insurance for such six-year period with terms, conditions, retentions and limits of liability that are substantially similar to those provided in excess Pivotal’s existing policies as of the date hereof, except that in no event shall VMware or the Surviving Corporation be required to (nor shall Pivotal or any of its Subsidiaries), commit or expend for such policies pursuant to this sentence or the preceding sentence, more than 300% of the last aggregate annual premiums premium paid by the Company in its last full fiscal year Pivotal prior to the date hereof for the CompanyPivotal’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance D&O Insurance (the “Base Amount”), and if such premiums for the cost of such “tail” policies policy would otherwise exceed 300% of the Base Amount, then Pivotal may purchase (or VMware or the Company shall purchase policies that provide Surviving Corporation will only be required to purchase, as the maximum case may be) only as much coverage available at an annual premium equal to 300% of as reasonably practicable for the Base Amount. The Company Pivotal shall in good faith cooperate with Parent VMware prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaidpolicy, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that ParentVMware, the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person Person, then, and in each such case, Parent VMware shall cause proper provision to be made so that the successor and assign of Parent VMware or the Surviving Corporation assumes the obligations set forth in this Section 5.4section 5.9.
(d) Each Indemnified Person to whom this section 5.9 applies will be a third party beneficiary of this section 5.9. The rights of each Indemnified Person under this section 5.9 shall survive consummation of the Merger and are intended to benefit, and shall be enforceable by, each Indemnified Person. The obligations of VMware and the Surviving Corporation under this section 5.9 shall not be terminated or modified in such manner as to adversely affect the rights of any Indemnified Person without the consent of such Indemnified Person.
Appears in 3 contracts
Samples: Merger Agreement (Dell Technologies Inc), Merger Agreement (Vmware, Inc.), Merger Agreement (Dell Technologies Inc)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree MCI WorldCom agrees that all rights to indemnification, exculpation, indemnification and advancement of expenses 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 and or officers of the Company Sprint and its Subsidiaries as provided in their respective articles of incorporation or by-laws (or comparable organizational documents) and any indemnification agreements of Sprint, the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect existence of the Merger Transactionswhich does not constitute a breach of this Agreement, shall be assumed and performed by MCI WorldCom, as the Surviving Corporation in the Merger, without further action, as of the Effective Time and shall survive the Merger and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations in accordance with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Lawtheir terms.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation MCI WorldCom or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person Person, then, and in each such case, Parent shall cause proper provision to will be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes MCI WorldCom assume the obligations set forth in this Section 5.45.9.
(c) For six years after the Effective Time, MCI WorldCom shall maintain in effect Sprint's current directors' and officers' liability insurance covering acts or omissions occurring prior to the Effective Time with respect to those Persons who are currently covered by Sprint's directors' and officers' liability insurance policy on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereof; provided, however, that in no event shall MCI WorldCom be required to expend in any one year an amount in excess of 200% of the annual premiums currently paid by Sprint for such insurance; and, provided, further, that if the annual premiums of such insurance coverage exceed such amount, MCI WorldCom shall be obligated to obtain a policy with the greatest coverage available for such amount.
Appears in 3 contracts
Samples: Merger Agreement (Sprint Corp), Merger Agreement (Mci Worldcom Inc), Agreement and Plan of Merger (Mci Worldcom Inc)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all rights to indemnification, exculpation, indemnification and advancement of expenses existing in favor of the current or former directors and officers of the Company as provided in the Company Organizational DocumentsCharter or Company Bylaws or those Contracts listed on Section 5.11 of the Company Disclosure Letter, employment agreementsin each case, or elsewhere as in effect on the date of this Agreement, for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, Time shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations in accordance with their terms with respect to any such claims against such directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law. Notwithstanding the foregoing, in the event that the Surviving Corporation sells or transfers all or substantially all of its assets, Parent shall cause the purchaser or transferee to assume the Surviving Corporation’s obligations under this Section (or shall provide that Parent or a Subsidiary of Parent that is no less creditworthy than the Surviving Corporation assume such obligations) and shall promptly notify the Company in writing of any such assumption.
(b) For six (6) years after Prior to the Effective TimeClosing, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid a “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance policy for the Company and fiduciary liability insurance maintained its directors, officers and other Persons who are currently covered by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of existing directors’ and officers’ liability insurance coverage maintained by the Company in a form reasonably acceptable to Parent that shall provide such directors, officers and fiduciary liability other Persons with coverage for six years following the Closing Date of not less than the existing coverage amount and have other terms not materially less favorable in the aggregate to the insured Persons in comparison to the Company’s existing insurance (coverage; provided, that in no event shall Parent be obligated to pay in excess of the “Base Amount”), and if such premiums amount set forth on Section 5.11 of the Company Disclosure Letter for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereundertail policy.
(c) In The provisions of this Section shall survive consummation of the event that Parent, Merger and are intended to be for the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person thenbenefit of, and in will be enforceable by, each such caseindemnified party, Parent shall cause proper provision to be made so that the successor his or her heirs and assign of Parent his or the Surviving Corporation assumes the obligations set forth in this Section 5.4her legal representatives.
Appears in 3 contracts
Samples: Merger Agreement (Paramount Gold Nevada Corp.), Merger Agreement (Coeur Mining, Inc.), Merger Agreement (Paramount Gold & Silver Corp.)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree agrees that all rights to indemnification, exculpation, and 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 and or officers of the Company and the Company Subsidiaries (each, an “Indemnified Person”) as provided in their respective charters or bylaws (or comparable organizational documents) and any indemnification or other similar agreements of the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect any of the Merger TransactionsCompany Subsidiaries, in each case as in effect on the date of this Agreement, shall be assumed by Parent in the Merger, without further action, as of the Effective Time and performed by shall survive the Surviving Corporation Merger and shall continue in full force and effect until the later in accordance with their terms for a period of not less than six years after following the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable LawTime.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation Parent or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person Person, then, and in each such case, Parent shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes assume the obligations set forth in this Section 5.46.05 contemporaneous with the closing of any such consolidation, merger, transfer or conveyance.
(c) At or prior to the Effective Time, the Company shall purchase a fully prepaid, non-cancellable, non-amendable and non-refundable “tail” directors’ and officers’ liability insurance policy for the Company and the Company Subsidiaries and their current and former directors, officers and employees who are currently covered by the directors’ and officers’ liability insurance coverage currently maintained by the Company or the Company Subsidiaries in a form reasonably acceptable to the Company that shall provide such directors, officers and employees with coverage for six years following the Effective Time of not less than the existing coverage and have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance coverage currently maintained by the Company or the Company Subsidiaries, except that in no event shall the Company pay with respect to such “tail” policy more than 300% of the aggregate annual premium payable by the Company for such insurance policy for the year ended December 31, 2016 (the “Maximum Amount”), and if the Company is unable to obtain the insurance required by this Section 6.05(c) for an amount that is equal to or less than the Maximum Amount, it shall obtain as much comparable “tail” insurance as possible for the years within such six-year period for an amount equal to the Maximum Amount. The “tail” policy obtained pursuant to this Section 6.05(c) shall not be amended, modified, cancelled or revoked by the Company, Parent or the Surviving Corporation.
(d) The provisions of this Section 6.05 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Indemnified Person), his or her heirs and his or her representatives and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise, including under the terms of the respective charters or bylaws or comparable organizational documents of the Company and the Company Subsidiaries.
Appears in 3 contracts
Samples: Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Hawaiian Telcom Holdco, Inc.)
Indemnification, Exculpation and Insurance. (a) From and after the Effective Time, the Parent will fulfill and honor and will cause the Surviving Corporation to fulfill and honor in all respects the obligations of the Company pursuant to its certificate of incorporation, its bylaws and any indemnification agreements between the Company and its directors and officers in their capacity as such (the "INDEMNIFIED PARTIES") existing prior to the date hereof. From and after the Effective Time, such obligations shall be the joint and several obligations of Parent and Merger Sub agree that all rights to indemnificationthe Surviving Corporation and, exculpationby executing this Agreement, Parent hereby assumes such obligations. The Certificate of Incorporation and advancement of expenses existing in favor Bylaws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and Bylaws of the Company, which provisions will not be amended, repealed or otherwise modified from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, immediately prior to the Effective Time, were directors, officers, employees or agents of the Company or its Subsidiaries, unless such modification is required by law.
(b) Parent will cause to be maintained for a period of not less than three years from the Effective Time the Company's current or former directors' and officers' insurance and indemnification policy to the extent that it provides coverage for events occurring prior to the Effective Time (the "D&O INSURANCE") for all persons who are directors and officers of the Company on the Agreement Date (and to the extent covered by the D&O Insurance as provided in of the Agreement Date, persons who were directors and officers of the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective TimeAgreement Date), including in respect their capacity as such, so long as the annual premium therefor would not be in excess of 150% of the last annual premium paid prior to the Agreement Date (the "MAXIMUM PREMIUM") and, to the extent the annual premium would exceed the Maximum Premium, Parent will cause to be maintained for such period the maximum amount of such D&O Insurance that can readily be procured for the Maximum Premium. If the existing D&O Insurance expires, is terminated or canceled during such two year period, Parent will use all reasonable efforts to cause to be obtained as much D&O Insurance as can be obtained for the remainder of such period for an annualized premium not in excess of the Maximum Premium, on terms and conditions no less advantageous than the existing D&O insurance. In lieu of maintaining the Company's 40 41 current D&O insurance, Parent may elect to add the directors and officers of the Company on the Agreement Date (and to the extent covered by the D&O Insurance as of the Agreement Date, persons who were directors and officers of the Company prior to the Agreement Date) to its own insurance policy, provided that such election does not diminish the rights provided to such persons under the Company's existing D&O Insurance.
(c) This Section 6.5 will survive any termination of this Agreement and the consummation of the Merger Transactionsat the Effective Time is intended to benefit the Company, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time persons who are or the expiration of the applicable statute of limitations with respect to any such claims against were directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, and will be binding on all successors and assigns of the Company Parent or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(cd) In the event that Parent, Parent or the Surviving Corporation or any of its their successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall not be the continuing or surviving corporation corporations or entity entities of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person thenmerger, then and in each such case, Parent proper provisions shall cause proper provision to be made so that the successor successors and assign assigns of the Parent or the Surviving Corporation assumes shall assume the obligations of the Parent or the Surviving Corporation, as the case may be, set forth in this Section 5.46.5.
(e) The provisions of this Section 6.5 are intended to be for the benefit of, and shall be enforceable by, each indemnified party and such party's heirs and representatives.
Appears in 3 contracts
Samples: Merger Agreement (Symantec Corp), Merger Agreement (Quarterdeck Corp), Merger Agreement (Quarterdeck Corp)
Indemnification, Exculpation and Insurance. (a) The Parent and Merger Sub Parties agree that all rights to indemnification, exculpation, advancement and advancement of expenses exculpation existing in favor of the current or former directors and officers of the Company and its Subsidiaries as provided in the Company Organizational Documents, employment agreementsCharter or Company Bylaws, or elsewhere the corresponding governing documents of such Subsidiaries, as in effect on the date of this Agreement for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, Time shall be assumed and performed by the Surviving Corporation Company, with any payments thereof guaranteed by Parent, and shall continue in full force and effect until the later for a period of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against such directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For a period of six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance to be maintained in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by effect the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance covering each Person currently covered by the Company’s directors’ and fiduciary officers’ liability insurance maintained by the Company with respect policy (a correct and complete copy of which has been heretofore made available to matters arising at Parent) for acts or omissions occurring prior to the Effective Time; provided, except that Parent may (i) substitute therefor policies of an insurance company the material terms of which, including coverage and amount, are no less favorable in any material respect to such directors and officers than the Company’s existing policies as of the date hereof or (ii) request that the Company may not commit obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective Time); and provided further, that in no event shall Parent or spend on such “tail” policies the Company be required to pay annual premiums for insurance under this Section 5.8(b) in excess of 300% of the amount of the annual premiums paid by the Company in its last full for fiscal year prior 2020 for such purpose (which fiscal year 2020 premiums are hereby represented and warranted by the Company to be as set forth in Section 5.8(b) of the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”Company Disclosure Letter), and if such premiums it being understood that Parent shall nevertheless be obligated to provide as much coverage as may be obtained for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderamount.
(c) In the event that Parent, the Surviving Corporation Company or any of its their respective successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person Person, then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation Company (as applicable) assumes the obligations set forth in this Section 5.45.8.
(d) The provisions of this Section 5.8 shall survive consummation of the Mergers and are intended to be for the benefit of, and shall be enforceable by, each indemnified party, his or her heirs and his or her legal representatives and shall be binding on all successors and assigns of Parent and the Surviving Company. The obligations of Parent and the Surviving Company under this Section 5.8 shall not be terminated or modified in such a manner as to adversely affect any indemnified party unless the affected indemnified party shall have consented in writing to such termination or modification.
Appears in 3 contracts
Samples: Merger Agreement (Patterson Uti Energy Inc), Merger Agreement (Patterson Uti Energy Inc), Merger Agreement (Pioneer Energy Services Corp)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all rights to indemnification, exculpation, exculpation and advancement of expenses existing in favor of the current or former directors and officers of the Company and each Subsidiary of the Company as provided in the Company Organizational Documents, employment agreements, Charter or elsewhere Company Bylaws (and comparable governing documents of the Subsidiaries of the Company that have been delivered and made available to Parent prior to the date hereof) as in effect on the date of this Agreement for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, Time shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against such directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For a period of six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance to be maintained in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by effect the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance covering each Person currently covered by the Company’s directors’ and fiduciary officers’ liability insurance maintained by the Company with respect policy (a correct and complete copy of which has been heretofore made available to matters arising at Parent) for acts or omissions occurring prior to the Effective Time; provided, except that Parent may (i) substitute therefor policies of an insurance company the material terms of which, including coverage and amount, are no less favorable in any material respect to such directors and officers than the Company’s existing policies as of the date hereof or (ii) request that the Company may not commit obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective Time); and provided, further, that in no event shall Parent or spend on such “tail” policies the Company be required to pay annual premiums for insurance under this Section 5.8(b) in excess of 300150% of the amount of the annual premiums paid by the Company in its last full for fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums 2014 for such “tail” policies would exceed 300% of the Base Amount, then purpose (which fiscal year 2014 premiums are hereby represented and warranted by the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation assumes the obligations as set forth in this Section 5.4.5.8(b) of the Company Disclosure Letter), it being understood that Parent shall nevertheless be obligated to provide as much coverage as may be obtained for such 150%
Appears in 2 contracts
Samples: Merger Agreement (Aruba Networks, Inc.), Merger Agreement (Hewlett Packard Co)
Indemnification, Exculpation and Insurance. (a) Except as may be required by applicable Law, Parent and Merger Sub the Company agree that all rights to indemnification, exculpation, indemnification and advancement of expenses existing in favor of the current or former directors and officers of the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time, including Time and rights to advancement of expenses relating thereto now existing in respect favor of any present (as of the Effective Time) or former officer, director or employee of the Company and its Subsidiaries (the “Indemnified Parties”) as provided in the articles of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement between such Indemnified Party and the Company or any of its Subsidiaries disclosed in Section 5.11(a) of the Company Disclosure Letter shall survive the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable LawIndemnified Party.
(b) For a period of six (6) years after from the Effective Time, Parent shall, and shall either cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies be maintained in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries or cause to be provided substitute policies or purchase or cause the Surviving Corporation to purchase, a “tail policy,” in either case of at least the same coverage and containing terms and conditions that are not less advantageous in the aggregate than such policy with respect to matters arising at on or before the Effective Time; provided, however, that after the Effective Time, Parent shall not be required to pay with respect to such insurance policies in respect of any one policy year annual premiums in excess of 250% of the last annual premium paid by the Company prior to the date hereof in respect of the coverage required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount; provided further, that if the Surviving Corporation purchases a “tail policy” and the coverage thereunder costs more than 250% of such last annual premium, the Surviving Corporation shall purchase the maximum amount of coverage that can be obtained for 250% of such last annual premium. With the prior written consent of Parent (which shall not be unreasonably withheld or delayed), the Company may purchase, prior to the Effective Time, except that a six-year prepaid “tail policy” on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (maintained by the “Base Amount”)Company and its Subsidiaries with respect to matters arising on or before the Effective Time, and covering without limitation the transactions contemplated hereby; provided, that Parent shall have no obligation to consent to the purchase of any such tail policy if such premiums for such “tail” policies would exceed 300it costs more than 250% of the Base Amount, then such last annual premium. If such tail prepaid policy has been obtained by the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policiesTime, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. (i) Parent shall cause the Surviving Corporation such policy to maintain such policies be maintained in full force and effect effect, for their its full term, and continue cause all obligations thereunder to honor be honored by the obligations thereunderSurviving Corporation and (ii) no party shall have any obligation to purchase or maintain any other insurance pursuant to this Section 5.11.
(c) Notwithstanding anything herein to the contrary, if any Action (whether arising before, at or after the Effective Time) is instituted against any Indemnified Party on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 5.11 shall continue in effect until the final disposition of such Action.
(d) The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise. The provisions of this Section 5.11 shall survive the consummation of the Merger and, notwithstanding any other provision of this Agreement that may be to the contrary, expressly are intended to benefit, and shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives.
(e) In the event that Parent, the Surviving Corporation or Parent or any of its their respective successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all a majority of its properties and assets to any Person Person, then, and in each such case, Parent shall cause proper provision to shall be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.45.11.
Appears in 2 contracts
Samples: Merger Agreement (Newport Corp), Merger Agreement (MKS Instruments Inc)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all All rights to indemnification, exculpation, and advancement of expenses (including, without limitation, witness and preparation fees) 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 and officers of the Company (the “Indemnified Parties”) as provided in the Certificate of Incorporation or Bylaws of the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring (as in effect immediately prior to the execution and delivery of this Agreement) shall be assumed by the Surviving Corporation in the Merger, without further action, as of the Effective Time, including in respect of and shall survive the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations in accordance with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Lawtheir terms.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior Prior to the Effective TimeClosing, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid a “run-off” or “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance coverage (the “D&O Tail Policy”) for the directors and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess officers of 300% of the annual premiums paid by the Company in its last full fiscal year respect of matters, acts, omissions and occurrences existing or occurring prior to or at the date hereof Closing, which shall provide such directors and officers with coverage for six (6) years (the Company’s current policies “Coverage Period”) of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage presently maintained by the Company (“D&O Insurance Policies”); provided, that the Company shall not purchase a D&O Tail Policy for an aggregate cost in excess of two hundred percent (200%) of the annual premium currently paid by the Company for the D&O Insurance Policies (the “Base AmountMaximum Premium”), and if such premiums for such “tail” policies would exceed 300% . Section 7.04(b) of the Base Amount, then Company Disclosure Letter sets forth the current annual premium paid by the Company shall purchase policies that provide for the maximum coverage available at an annual premium equal to 300% of D&O Insurance Policies. During the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policiesCoverage Period, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to (i) maintain the D&O Tail Policy in effect (provided, that Parent or the Surviving Corporation may, in its sole discretion, substitute therefor policies from an insurer with the same or better credit rating as the Company’s current insurance carrier of at least the same coverage and amounts and containing terms and conditions that are not, in the aggregate, less advantageous to the directors and officers of the Company than the D&O Insurance Policies) and (ii) if the D&O Tail Policy ceases to be in effect, obtain and fully pay for a replacement “tail” insurance policy therefor, which such policies replacement “tail” insurance policy shall have a claims period covering the Coverage Period and be from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with at least the same coverage and amounts and containing the same terms and conditions that are not, in full force the aggregate, less advantageous to the directors and effect officers of the Company, in each case, than the D&O Insurance Policies with respect to claims arising out of or relating to events that occurred before or at the Effective Time (including, without limitation, in connection with the transactions contemplated by this Agreement); provided, that in no event shall the Surviving Corporation or Parent be required to expend an aggregate amount in excess of the Maximum Premium for their full term, and continue to honor the obligations thereundersuch replacement “tail” insurance policies.
(c) In the event that Parent, Parent or the Surviving Corporation or any of its their respective successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and other assets to any Person Person, then, and in each such case, Parent or the Surviving Corporation, as applicable, shall cause proper provision to be made so that the successor such successors and assign assigns shall expressly assume (including by operation of Parent or the Surviving Corporation assumes Law) the obligations set forth in this Section 5.47.04.
(d) The obligations of Parent and the Surviving Corporation under this Section 7.04 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 7.04 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 7.04 applies shall be third party beneficiaries of this Section 7.04, each of whom (and whose heirs) may enforce the provisions of this Section 7.04). The provisions of this Section 7.04 in addition to, and not in substitution for or prior to, any other rights to indemnification or contribution that any such Person may have from the Company or any other Person by Law, Contract or otherwise. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or its officers, directors and employees.
Appears in 2 contracts
Samples: Merger Agreement (Easylink Services International Corp), Merger Agreement (Open Text Corp)
Indemnification, Exculpation and Insurance. (a) Parent From and Merger Sub agree that all rights to indemnification, exculpation, and advancement of expenses existing in favor of the current or former directors and officers of the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after the Effective Time, the Parent shall, and shall cause the Surviving Corporation Company to, fulfill and honor in all respects the obligations of the Company pursuant to any indemnification and exculpation agreements disclosed in Section 5.16(a) of the Company Disclosure Letter between the Company and its directors and officers (the “Indemnified Parties”) and any indemnification and exculpation provisions under the Company Charter Documents as in effect on the date hereof including with respect to matters, acts or omissions occurring in connection with the approval of or entering into this Agreement or the consummation of the Transactions.
(b) The Parent shall cause the Articles of Association of the Surviving Company to 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 Association as in effect on the date hereof, which provisions will not be amended, repealed or otherwise modified for a period of seven years from the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Persons, unless such modification is required by Legal Requirements.
(c) The Parent shall, or shall cause the Surviving Company to, maintain a policy or policies of officers’ and directors’ liability insurance for acts and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent Time (on behalf of the Surviving Corporation“D&O Insurance”) shall purchase six (6) year prepaid “tail” policies on terms with coverage in amount and conditions providing coverage retentions, limits and other material terms scope no less favorable in the aggregate than the current policies of Parent’s existing directors’ and officers’ liability insurance coverage for a period of seven years after the Effective Time; provided, however, that, if the existing D&O Insurance expires, is terminated or cancelled during such seven-year period, the Surviving Company will use commercially reasonable efforts to obtain D&O Insurance in such amount and fiduciary liability insurance maintained by scope; provided, further, that in lieu of such coverage, the Surviving Company may substitute a prepaid “tail” policy for such coverage, which, notwithstanding anything in Section 4.1 to the contrary, the Company with respect to matters arising at or may obtain prior to the Effective Time, except that Closing. In no event shall the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums aggregate cost for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderunder this Section 5.16(c) be more than $1,500,000.
(cd) In If the event that Parent, Parent or the Surviving Corporation Company or any of its their respective successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all its properties and assets to any Person thenPerson, and in each such case, the Parent shall cause proper provision provisions to be made so that the successor successors and assign assigns of the Parent or the Surviving Corporation assumes Company assume the obligations set forth in this Section 5.45.16. The provisions of this Section 5.16 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnified Party, his or her heirs and his or her representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by Contract or otherwise. The obligations of the Parent and the Surviving Company under this Section 5.16 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 5.16 applies without the express written consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Party to whom this Section 5.16 applies shall be third party beneficiaries of this Section 5.16).
Appears in 2 contracts
Samples: Merger Agreement (Saifun Semiconductors Ltd.), Merger Agreement (Saifun Semiconductors Ltd.)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all All rights to indemnification, exculpation, indemnification and advancement exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time existing as of expenses existing the date of this Agreement in favor of the current or former directors and or officers of the Company Receiver and its Subsidiaries and Safety in each case as provided in their respective certificates of incorporation or by-laws (or similar organizational documents) and any indemnification agreements (x) of Receiver set forth in Schedule 6.7(a) of the Company Organizational Documents, employment agreements, Receiver Disclosure Letter or elsewhere for acts disclosed in the Receiver SEC Documents or omissions occurring prior to (y) of Safety set forth in Section 6.7(a) of the Safety Disclosure Letter shall survive the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation Time and shall continue in full force and effect until the later of six years after in accordance with their terms from the Effective Time or until the expiration of the applicable statute of limitations with respect to any such claims against such directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after the Effective Time, Parent shall, and Receiver shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the Receiver’s current policies of directors’ and officers’ liability insurance covering each Person currently covered by Receiver’s directors’ and fiduciary officers’ liability insurance maintained by the Company with respect to matters arising at policy for acts or omissions occurring prior to the Effective TimeTime on terms with respect to such coverage and amounts no less favorable in any material respect to such directors and officers than those of such policy as in effect on the date of this Agreement; provided that Receiver may substitute therefor policies of a reputable insurance company the material terms of which, except including coverage and amount, are no less favorable in any material respect to such directors and officers than the insurance coverage otherwise required under this Section 6.7(b); provided, however, that the Company may not commit or spend on such “tail” policies in no event shall Receiver be required to pay aggregate annual premiums for insurance under this Section 6.7(b) in excess of $870,000 (the “Receiver Maximum Premium”), which Receiver represents and warrants is equal to 300% of the annual premiums paid by the Company in its last full fiscal year prior to as of the date hereof by Receiver for such insurance; provided that, if such premium exceeds the Company’s current policies of Receiver Maximum Premium, Receiver shall nevertheless be obligated to provide the most advantageous coverage as may be obtained for such Receiver Maximum Premium.
(c) Receiver shall obtain and maintain for six years after the Effective Time directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if covering each Person currently a director or officer of Safety for acts or omissions of such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent Persons occurring prior to the Effective Time on terms with respect to such coverage and amounts no less favorable in any material respect to such directors and officers than those of the procurement current policy for such Persons as in effect on the date of this Agreement; provided, that in no event shall Receiver be required to pay aggregate annual premiums for insurance under this Section 6.7(c) in excess of $870,000 (the “Safety Maximum Premium”); provided that, if such premium exceeds the Safety Maximum Premium, Receiver shall nevertheless be obligated to provide the most advantageous coverage as may be obtained for such Safety Maximum Premium. Notwithstanding the foregoing, Receiver may obtain a six-year “tail” policiespolicy, subject to such policy being fully prepaid, including with respect to coverage and terms as set forth in the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies immediately prior sentence in full force and effect for their full term, and continue to honor the satisfaction of its obligations thereunderunder this Section 6.7(c).
(cd) In the event that Parent, the Surviving Corporation If Receiver or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall not be the continuing or surviving corporation Surviving Company or entity of in such consolidation or merger or (ii) transfer transfers all or substantially all of its properties and assets to any Person Person, then, and in each either such case, Parent shall cause proper provision to shall be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Receiver shall assume the obligations of Receiver set forth in this Section 5.46.7. The rights of each indemnified party hereunder shall be in addition to any other rights such indemnified party may have under the Receiver or Safety Constituent Documents, any applicable Law, agreement or otherwise.
(e) Receiver shall pay all reasonable expenses, including reasonable attorney’s fees, incurred by any indemnified party in connection with successfully enforcing the indemnity and other obligations provided in this Section 6.7.
(f) The provisions of this Section 6.7 shall survive the consummation of the Merger and (if the Effective Time occurs) are expressly intended to benefit each of the indemnified parties, their heirs and Representatives.
Appears in 2 contracts
Samples: Merger Agreement (Allscripts Healthcare Solutions Inc), Merger Agreement (Misys PLC)
Indemnification, Exculpation and Insurance. (a) Parent From and Merger Sub agree after the Effective Time, Compuware will fulfill and honor and will cause the Surviving Corporation to fulfill and honor in all respects the obligations of Viasoft pursuant to any indemnification agreements between Viasoft and any of its subsidiaries and their respective directors and officers (each, an "Indemnified Party") existing prior to the date hereof; provided that Compuware and the Surviving Corporation will have no obligation to indemnify an Indemnified Party thereunder in respect of claims, liabilities or damages arising out of a breach of a representation or covenant made by Viasoft in this Agreement knowingly and willfully caused by such Indemnified Party. From and after the Effective Time, such obligations will be the joint and several obligations of Compuware and the Surviving Corporation and, by executing this Agreement, Compuware hereby assumes such obligations. Compuware will cause to be maintained for a period of not less than two years after the Effective Time Viasoft's current directors' and officers' insurance and indemnification policy to the extent that it provides coverage for events occurring prior to the Effective Time (the "D&O Insurance") for all rights to indemnification, exculpation, and advancement of expenses existing in favor of the current or former persons who are directors and officers of Viasoft on the Company date of this Agreement, so long as provided the annual premium therefor would not be in excess of 150% of the amount per annum Viasoft paid in its last full fiscal year, which amount has been disclosed to Compuware. If the existing D&O Insurance cannot be maintained, expires or is terminated or cancelled during such two-year period, Compuware will use all reasonable efforts to cause to be obtained as much D&O Insurance as can be obtained for the remainder of such period for an annualized premium not in excess of 150% of the amount per annum Viasoft paid in its last full fiscal year, which amount has been disclosed to Compuware, on terms and conditions substantially similar to the existing D&O Insurance. The certificate of incorporation and bylaws of the Surviving Corporation will contain the same provisions with respect to indemnification and elimination of liability for monetary damages as are set forth in the Company Organizational Documentscertificate of incorporation and bylaws of Viasoft, employment agreementswhich provisions will not be amended, repealed or elsewhere for acts otherwise modified from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, as of the date hereof or omissions occurring any time after the date hereof and prior to the Effective Time, including in respect were directors, officers, employees or agents of the Merger TransactionsViasoft or its subsidiaries, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any unless such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise modification is required by applicable Lawlaw.
(b) For six (6) years after This Section 6.6 will survive any termination of this Agreement and the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect consummation of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company Time and will be binding on all successors and assigns of Compuware or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, Compuware or the Surviving Corporation or any of its their successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall will not be the continuing or surviving corporation corporations or entity entities of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person thenmerger, then and in each such case, Parent shall cause proper provision to provisions will be made so that the successor successors and assign assigns of Parent Compuware or the Surviving Corporation assumes will assume the obligations of Compuware or the Surviving Corporation, as the case may be, set forth in this Section 5.46.6.
Appears in 2 contracts
Samples: Merger Agreement (Viasoft Inc /De/), Merger Agreement (Compuware Corporation)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all All rights to indemnification, exculpation, indemnification and advancement of expenses 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, officers and officers employees of the Company and its Subsidiaries (the “Indemnified Parties”) as provided in the Company Organizational DocumentsCertificate or the Company By-laws or in any Company indemnification agreement (in each case, employment agreements, or elsewhere for acts or omissions occurring prior to as in effect on the Effective Time, including in respect of the Merger Transactions, date hereof) shall be assumed and performed by the Surviving Corporation Entity in the Merger, without further action, as of the Effective Time and shall survive the Merger and shall continue in full force and effect until in accordance with their terms. Parent shall indemnify and hold harmless, and provide advancement of expenses to the later Indemnified Parties to the same extent such persons are indemnified or have the right to advancement of six years after the Effective Time or the expiration expenses as of the applicable statute of limitations with respect to any such claims against directors or officers of date hereof by the Company arising out of such acts or omissions, except as otherwise required by applicable Lawpursuant to the Company Certificate and the Company By-laws.
(b) For six (6) years after the Effective Time, Parent shall, shall maintain in effect the Company’s current directors’ and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors acts or omissions occurring on at or before prior to the Effective Time, (including for acts or omissions occurring in respect connection with the approval of this Agreement and the consummation of the Merger Transactions, transactions contemplated hereby) covering each such person the Indemnified Parties currently covered by the Company’s directors’ and officers’ and directors’ liability and fiduciary liability insurance policy (a correct and complete copy of which has been heretofore made available to Parent), on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereof; provided, however, that Parent may substitute therefor policies on of Parent containing terms with respect to coverage and amount no less favorable than those of to such policies Indemnified Parties; provided, further, however, that in effect on the date hereof. The provisions of the immediately preceding sentence satisfying its obligation under this Section 6.04(b) Parent shall not be deemed obligated to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual pay aggregate premiums in excess of 300200% of the annual premiums amount paid by the Company in its last full fiscal year prior (which premiums are hereby represented and warranted by the Company to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”be approximately $500,000), it being understood and if agreed that Parent shall nevertheless be obligated to provide such premiums coverage as may be obtained for such “tail” policies would exceed 300200% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderamount.
(c) In The covenants contained in this Section 6.04 are intended to be for the event that Parentbenefit of, and shall be enforceable by, each of the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person Indemnified Parties and their respective heirs and legal representatives, and shall not be the continuing deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to Law, contract or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation assumes the obligations set forth in this Section 5.4otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Guilford Pharmaceuticals Inc), Merger Agreement (Mgi Pharma Inc)
Indemnification, Exculpation and Insurance. (a) Each of Parent and Merger Sub agree that all rights to indemnification, exculpation, indemnification and advancement exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time existing as of expenses existing the date of this Agreement in favor of the current or former directors and or officers of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or similar organizational documents) and any indemnification agreements of the Company Organizational Documents, employment agreements, set forth in Section 5.5(a) of the Company Disclosure Letter or elsewhere for acts or omissions occurring prior to disclosed in the Filed SEC Documents shall survive the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation Time and shall continue in full force and effect until the later of six years after in accordance with their terms from the Effective Time or until the expiration of the applicable statute of limitations with respect to any such claims against such directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law. Parent shall ensure that the Surviving Corporation remains in a financial position to meet its commitments under this Section 5.5(a).
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance to be maintained in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by effect the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance covering each Person currently covered by the Company’s directors’ and fiduciary officers’ liability insurance maintained by the Company with respect to matters arising at policy for acts or omissions occurring prior to the Effective TimeTime on terms with respect to such coverage and amounts no less favorable in any material respect to such directors and officers than those of such policy as in effect on the date of this Agreement; provided that Parent may substitute therefor policies of a reputable insurance company the material terms of which, except including coverage and amount, are no less favorable in any material respect to such directors and officers than the insurance coverage otherwise required under this Section 5.5(b); provided however, that the Company may not commit or spend on such “tail” policies in no event shall Parent be required to pay aggregate annual premiums for insurance under this Section 5.5(b) in excess of $978,750 (the “Maximum Premium”), which the Company represents and warrants is equal to 300% of the annual premiums paid as of the date hereof by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”)such insurance; provided that, and if such premiums premium exceeds the Maximum Premium, Parent shall nevertheless be obligated to provide the most advantageous coverage as may be obtained for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderMaximum Premium.
(c) In the event that Parent, If Parent or the Surviving Corporation or any of its their successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger or (ii) transfer transfers all or substantially all of its properties and assets to any Person Person, then, and in each either such case, Parent shall cause proper provision to shall be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Corporation, as the case may be, shall assume the obligations of Parent or the Surviving Corporation, as applicable, set forth in this Section 5.45.5. The rights of each indemnified party hereunder shall be in addition to any other rights such indemnified party may have under the Company Charter, Company By-laws, any applicable law, agreement or otherwise.
(d) Parent shall pay all reasonable expenses, including reasonable attorney’s fees, incurred by any indemnified party in connection with successfully enforcing the indemnity and other obligations provided in this Section 5.5.
(e) The provisions of this Section 5.5 shall survive the consummation of the Merger and (if the Effective Time occurs) are expressly intended to benefit each of the indemnified parties, their heirs and representatives.
Appears in 2 contracts
Samples: Merger Agreement (Edo Corp), Merger Agreement (Itt Corp)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all All rights to indemnification, exculpation, indemnification and advancement of expenses 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, officers and officers employees of the Company and its Subsidiaries (the "Indemnified Parties") as provided in the Company Organizational DocumentsCertificate, employment agreementsthe Company By-laws, existing indemnification agreements or elsewhere for acts or omissions occurring prior to as provided under applicable Law (in each case, as in effect on the Effective Time, including in respect of the Merger Transactions, date hereof) shall be assumed and performed by the Surviving Corporation Entity in the Merger, without further action, as of the Effective Time and shall survive the Merger and shall continue in full force and effect until in accordance with their terms. Parent shall indemnify and hold harmless, and provide advancement of expenses to the later Indemnified Parties to the same extent such persons are indemnified or have the right to advancement of six years after the Effective Time or the expiration expenses as of the date hereof by the Company pursuant to the Company Certificate, the Company By-laws, existing indemnification agreements or as provided under applicable statute Law. The Limited Liability Company Operating Agreement or certificate of limitations incorporation, as appropriate, of the Surviving Entity shall contain, and Parent shall cause the Limited Liability Company Operating Agreement or certificate of incorporation, as appropriate, of the Surviving Entity to contain, provisions no less favorable with respect to any such claims against indemnification and exculpation of present and former directors or and officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Lawthan are presently set forth in the Company Charter and Company By-laws.
(b) For a period of six (6) years after the Effective Time, Parent shall, shall maintain in effect the Company's current directors' and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary ' liability insurance in respect of acts, errors acts or omissions occurring on at or before prior to the Effective Time, Time (including for acts or omissions occurring in respect connection with the approval of this Agreement and the consummation of the Merger Transactions, transactions contemplated hereby) covering each such person the Indemnified Parties currently covered by the Company’s 's directors' and officers’ and directors’ liability and fiduciary ' liability insurance policy (a correct and complete copy of which has been previously made available to Parent), on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereof; provided, however, that Parent may substitute therefor policies on of Parent with containing terms with respect to coverage and amount no less favorable than those of to such policies Indemnified Parties; provided, further, however, that in effect on the date hereof. The provisions of the immediately preceding sentence satisfying its obligation under this Section 6.04(b) Parent shall not be deemed obligated to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual pay aggregate premiums in excess of 300% of the annual premiums amount paid by the Company in its last full fiscal year prior year, it being understood and agreed that Parent shall nevertheless be obligated to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if provide such premiums coverage as may be obtained for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderamount.
(c) In The covenants contained in this Section 6.04 are intended to be for the event that Parentbenefit of, and shall be enforceable by, each of the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person Indemnified Parties and their respective heirs and legal representatives, and shall not be the continuing deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to Law, contract or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation assumes the obligations set forth in this Section 5.4otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Pacificare Health Systems Inc /De/), Merger Agreement (Unitedhealth Group Inc)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree agrees that all rights to indemnification, exculpation, and 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 and or officers of the Company and the Company Subsidiaries (each, an “Indemnified Person”) as provided in their respective articles of incorporation or code of regulations (or comparable organizational documents) and any indemnification or other similar agreements of the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect any of the Merger TransactionsCompany Subsidiaries, in each case as in effect on the date of this Agreement, shall be assumed by Parent in the Merger, without further action, as of the Effective Time and performed by shall survive the Surviving Corporation Merger and shall continue in full force and effect until the later in accordance with their terms for a period of not less than six years after following the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable LawTime.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation Parent or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person Person, then, and in each such case, Parent shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes assume the obligations set forth in this Section 5.46.05 contemporaneous with the closing of any such consolidation, merger, transfer or conveyance.
(c) At or prior to the Effective Time, the Company shall purchase a fully prepaid, non-cancellable, non-amendable and non-refundable “tail” directors’ and officers’ liability insurance policy for the Company and the Company Subsidiaries and their current and former directors, officers and employees who are currently covered by the directors’ and officers’ liability insurance coverage currently maintained by the Company or the Company Subsidiaries in a form reasonably acceptable to the Company that shall provide such directors, officers and employees with coverage for six years following the Effective Time of not less than the existing coverage and have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance coverage currently maintained by the Company or the Company Subsidiaries, except that in no event shall the Company pay with respect to such “tail” policy more than 300% of the aggregate annual premium payable by the Company for such insurance policy for the year ended December 31, 2019 (the “Maximum Amount”), and if the Company is unable to obtain the insurance required by this Section 6.05(c) for an amount that is equal to or less than the Maximum Amount, it shall obtain as much comparable “tail” insurance as possible for the years within such six-year period for an amount equal to the Maximum Amount. The “tail” policy obtained pursuant to this Section 6.05(c) shall not be amended, modified, cancelled or revoked by the Company, Parent or the Surviving Corporation.
(d) The provisions of this Section 6.05 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Indemnified Person), his or her heirs and his or her representatives and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise, including under the terms of the respective articles of incorporation or code of regulations or comparable organizational documents of the Company and the Company Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Cincinnati Bell Inc)
Indemnification, Exculpation and Insurance. (a) With effect from the Acceptance Time, Parent and Merger Sub the Company (or its successor) agree to refrain from making and enforcing any claim against, to waive any claim against, and to release and discharge from any claim, and to procure that their respective Subsidiaries refrain from making and enforcing any claim against, waive any claim against, and release and discharge from any claim, each current or former director and officer of the Company and each current or former director representing the Company in its Subsidiaries, for damages any of them has or may have based on directors’ or officers’ liability arising out of any matter, cause or event occurring on or before the Acceptance Time; provided, that the foregoing shall not apply in connection with any fraud, willful acts or omissions of a director or officer, as the case may be.
(b) Parent agrees that all rights to indemnification, exculpation, and advancement indemnification existing as of expenses existing the date hereof in favor of the current or former directors and officers of the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere Articles and the Contracts with such directors and officers of the Company as provided to Parent and in effect on the date of this Agreement for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, Acceptance Time shall be assumed and performed by the Surviving Corporation Company (or its successor) and its Subsidiaries and shall continue in full force and effect until the later for a period of six years after the Effective Acceptance Time or the expiration of the applicable statute of limitations with respect to any such claims against such directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(bc) For a period of six (6) years after the Effective Acceptance Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance to be maintained in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by effect the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance covering each Person currently covered by the Company’s directors’ and fiduciary officers’ liability insurance maintained by the Company with respect policy (a correct and complete copy of which has been heretofore made available to matters arising at Parent) for acts or omissions occurring prior to the Effective Acceptance Time; provided, except that Parent may (i) substitute therefor policies of an insurance company the terms of which, including coverage and amount, are no less favorable in any material respect to such directors and officers than the Company’s existing policies as of the date hereof or (ii) request that the Company may not commit obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Acceptance Time); and provided, further, that in no event shall Parent or spend on such “tail” policies the Company be required to pay annual premiums for insurance under this Section 4.9(b) in excess of 300% of the most recent annual premiums paid by the Company for such purpose (which annual premiums are hereby represented and warranted by the Company to be as set forth in its last full fiscal year prior Section 4.9(c) of the Company Disclosure Letter), it being understood that Parent shall nevertheless be obligated to provide as much coverage as may be obtained for such 300% amount.
(d) Following the Acceptance Time, subject to the date hereof for occurrence of any fraud, willful acts or omissions by such current or former director or officer of the Company, Parent shall, or shall cause its respective Subsidiaries (including the Company (or its successor) and the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then Subsidiaries) holding Shares in the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall or shares in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation or any of its successors Subsidiaries to, grant full discharge to each current or assigns shall (i) consolidate with former director and officer of the Company and each current or merge into any other Person former director representing the Company in its Subsidiaries at the next extraordinary and shall not be the continuing or surviving corporation or entity annual general meeting of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign shareholders for their term of Parent or the Surviving Corporation assumes the obligations set forth in this Section 5.4office.
Appears in 2 contracts
Samples: Transaction Agreement (Ironwood Pharmaceuticals Inc), Transaction Agreement (Ironwood Pharmaceuticals Inc)
Indemnification, Exculpation and Insurance. (a) Parent The articles of incorporation and Merger Sub agree that all rights to indemnification, exculpation, and advancement of expenses existing in favor the by-laws of the current or former directors Surviving Corporation shall contain the provisions with respect to indemnification and officers of the Company as provided exculpation from liability set forth in the Company Organizational DocumentsCompany's articles of incorporation and by-laws on the date of this Agreement, employment agreementswhich provisions shall not be amended, repealed or elsewhere otherwise modified for acts a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or omissions occurring prior to the Effective TimeTime were directors, including in respect officers, employees or agents of the Merger TransactionsCompany, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any unless such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise modification is required by applicable Lawlaw.
(b) For six (6) years after from the Effective Time, Parent shallshall maintain in effect directors' and officers' liability insurance covering those persons who are currently covered by the Company's directors' and officers' liability insurance policy (a copy of which has been heretofore made available to Parent) on terms no less favorable to such indemnified parties than the terms of such current insurance coverage; provided, however, that (i) in lieu of the purchase of such insurance by the Surviving Corporation or Parent, the Company, with Parent's written consent, may purchase a five-year extended reporting period endorsement ("reporting tail coverage") under its existing directors' and officers' liability insurance coverage and (ii) if the cost of such insurance in any year during such six-year period shall exceed 150% of the premium cost for such policy for the year ended June 30, 1999 (such premium being the "Current Premium"), then Parent shall cause the Surviving Corporation to, maintain officers’ and the Surviving Corporation shall, provide coverage affording the same protection as maintained by Parent as of such date for its officers and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with represents to Parent prior to that the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderCurrent Premium is $270,500.
(c) In addition to the other rights provided for in this Section 5.7 and not in limitation thereof, for six years from and after the Effective Time, Parent and the Surviving Corporation shall, to the fullest extent permitted by applicable law, (i) indemnify and hold harmless the individuals who on or prior to the Effective Time were officers or directors of the Company (collectively, the "Indemnitees") against all losses, Expenses (as hereinafter defined), claims, damages, liabilities, judgments, or amounts paid in settlement (collectively, "Costs") in respect to any claim, action, suit or proceeding, whether criminal, civil, administrative or investigative based on, or arising out of or relating to the fact that such person is or was a director or officer of the Company and arising out of acts or omissions occurring on or after July 1, 1998 and on or prior to the Effective Time (including, without limitation, in respect of acts or omissions in connection with this Agreement and the transactions contemplated hereby) to the fullest extent that the Company would have been permitted under the SDBCA and its articles of incorporation and by-laws in effect on the date hereof to indemnify such person (an "Indemnifiable Claim") and (ii) advance to such Indemnitees all Expenses incurred in connection with any Indemnifiable Claim promptly after receipt of reasonably detailed statements therefor; provided, that the person to whom Expenses are to be advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification from the Surviving Corporation. In the event any Indemnifiable Claim is asserted or made within such six year period, all rights to indemnification and advancement of Expenses in respect of any such Indemnifiable Claim shall continue until such Indemnifiable Claim is disposed of or all judgments, orders, decrees or other rulings in connection with such Indemnifiable Claim are fully satisfied. For the purposes of this Section 5.7, "Expenses" shall include reasonable attorneys' fees and all other costs, charges and expenses paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in any Indemnifiable Claim.
(d) Any Indemnitee wishing to claim indemnification under paragraph (c) of this Section 5.7, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify the Surviving Corporation thereof, but the failure to so notify shall not relieve the Surviving Corporation of any liability it may have to such Indemnitee if such failure does not materially prejudice the indemnifying party. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Surviving Corporation shall have the right to assume the defense thereof and the Surviving Corporation shall not be liable to such Indemnitees for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnitees in connection with the defense thereof, except that if the Surviving Corporation does not elect to assume such defense or counsel for the Indemnitees advises that there are issues which raise conflicts of interest between the Surviving Corporation and any Indemnitees or between any two or more Indemnitees, such Indemnitees may retain counsel satisfactory to them, and the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnitees promptly as statements therefor are received; provided, however, that the Surviving Corporation shall be obligated pursuant to this paragraph (d) to pay for only one firm of counsel for all Indemnitees in any jurisdiction (unless there is a conflict of interest as provided above), (ii) the Indemnitees will cooperate in the defense of any such matter and (iii) the Surviving Corporation shall not be liable for any settlement effected without the prior written consent of the Surviving Corporation, which consent shall not be unreasonably withheld.
(e) The obligations of the Company, the Surviving Corporation and Parent contained in this Section 5.7 shall be binding on the successors and assigns of Parent and the Surviving Corporation. If Parent, the Surviving Corporation or any of its their successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers all or substantially all of its properties and assets to any Person thenperson, then and in each such case, Parent proper provisions shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Corporation, as the case may be, shall assume the obligations set forth in this Section 5.45.7.
Appears in 2 contracts
Samples: Merger Agreement (International Game Technology), Merger Agreement (Sodak Gaming Inc)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all rights to indemnification, exculpation, and advancement of expenses existing in favor of the current or former directors and officers of the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after the Effective Time, Parent shall, and or shall cause the Surviving Corporation to, maintain directors’ and officers’ and directors’ liability and fiduciary liability insurance (“D&O Insurance”) in respect of acts, errors acts or omissions occurring on or before prior to the Effective Time, including in respect of the Merger Transactions, Time covering each such person Person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies D&O Insurance policy on terms with respect to coverage and amount no less favorable than those of such policies policy in effect on the date hereof; provided, however, that in satisfying its obligation under this Section 6.9(a), neither Parent nor the Surviving Corporation shall be obligated to pay annual premiums in excess of 300 % of Annual Premium Amount and if such premiums for such insurance would at any time exceed 300% of the Annual Premium Amount, then the Surviving Corporation shall cause to be maintained policies of insurance that, in the Surviving Corporation’s good faith judgment, provide the maximum coverage available at an annual premium equal to 300% of the Annual Premium Amount. The provisions of the immediately preceding sentence shall be deemed to have been satisfied ifif prepaid “tail” or “runoff” policies have been obtained by the Company prior to the Effective Time, which policies provide such Persons currently covered by such policies with coverage in the same amount, and subject to the same retention, terms, conditions and exclusions of the D&O Insurance in effect immediately before Closing, for an aggregate period of six years (6) with respect to claims arising from facts or events that occurred on or before the Effective Time, including in respect of the transactions contemplated by this Agreement; provided, however, that the amount paid for such prepaid policies does not exceed 300% of the Annual Premium Amount, if the premium for such six-year “tail” or “runoff” insurance would exceed 300% of the Annual Premium Amount, then the Surviving Corporation shall cause to be maintained a “tail” or “runoff” D&O Insurance that, in the Surviving Corporation’s good faith judgment, provide the maximum coverage available at or a premium equal to 300% of the Annual Premium Amount. If the Company shall elect to obtain such prepaid policies prior to the Effective Time, the Company or Parent Surviving Corporation shall (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to to) maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(b) From and after the Effective Time, each of Parent and the Surviving Corporation fulfill and honor in all respects the obligations of the Company pursuant to: (x) each indemnification agreement in effect as of the date of this Agreement between the Company and 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 “Indemnified Party”); and (y) any indemnification provision (including advancement of expenses) and any exculpation provision set forth in the Company Charter or Company Bylaws as in effect on the date hereof. Parent’s and the Surviving Corporation’s obligations shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that all rights to indemnification, exculpation and advancement of expenses in respect of any claim asserted or made within such period shall continue until the final disposition of such claim. If Parent or the Surviving Corporation fails to comply with its obligations in this Section 6.9(b) and an Indemnified Party commences a suit which results in a determination that Parent or the Surviving Corporation failed to comply with such obligation, Parent shall pay such Indemnified Party his or her costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest thereon at the “prime rate” as published in The Wall Street Journal, Eastern Edition, in effect on the date such payment was required to be made through the date of payment (calculated daily on the basis of a year of 365 days and the actual number of days elapsed, without compounding).
(c) In the event that If Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person Person, then, and in each such case, Parent shall cause case proper provision to shall be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Corporation, as the case may be, shall assume the obligations set forth in this Section 5.46.9(c).
(d) The provisions of this Section 6.9(d) are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnified Party, his or her heirs and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under any certificate of incorporation or bylaws, by Contract or otherwise. The obligations of Parent and the Surviving Corporation under this Section 6.9(d) shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnified Party shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnified Parties shall be third party beneficiaries of this Section 6.9(d)). Parent and the Surviving Corporation jointly and severally agree to pay or advance, upon written request of an Indemnified Party, all costs, fees and expenses, including attorneys’ fees, that may be incurred by the Indemnified Parties in enforcing their indemnity rights and other rights provided in this Section 6.9(d).
Appears in 2 contracts
Samples: Merger Agreement (Neos Therapeutics, Inc.), Merger Agreement (Aytu Bioscience, Inc)
Indemnification, Exculpation and Insurance. (a) Each of Parent and Merger Sub agree the Company agrees that all rights to indemnification, exculpation, and 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 and or officers of the Company and the Company Subsidiaries as provided in their respective certificates of incorporation or bylaws (or comparable organizational documents), in each case as in effect on the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect date of the Merger Transactionsthis Agreement, shall be continued or assumed and performed by Parent or the Surviving Corporation Company following the Integrated Mergers, without further action, and shall survive the Integrated Mergers and shall continue in full force and effect until the later in accordance with their terms for a period of six (6) years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable LawTime.
(b) For a period of six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain Company to procure the provision of officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors acts or omissions occurring on or before prior to the Effective Time, including in respect of the Merger Transactions, Time covering each such person Person currently covered by the Company’s or any of the Company Subsidiaries’ officers’ and directors’ liability and fiduciary liability insurance policies policy on terms with respect to coverage and amount no less in amounts that are at least as favorable than as those of such policies the applicable policy in effect on the date hereof. The provisions of this Agreement; provided that if the aggregate annual premium for such insurance exceeds 300% of the immediately preceding sentence current annual premium for such insurance, then Parent shall provide or cause to be deemed provided a policy for the applicable individuals with the best coverage as is then available at a cost up to have been satisfied ifbut not exceeding 300% of such current aggregate annual premium. In lieu of such insurance, at or prior to the Effective TimeClosing Date, Parent may, following consultation with the Company or Parent (on behalf of the Surviving Corporation) shall Company, purchase six (6) year prepaid a “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance policy and fiduciary liability insurance maintained policy for the Company and the Company Subsidiaries and their current and former directors and officers who are currently covered by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then coverage maintained by the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The or any Company shall in good faith cooperate with Parent prior to the Effective Time Subsidiary on terms with respect to coverage and in amounts that are at least as favorable as those of the procurement applicable policy in effect on the date of such “tail” policies, this Agreement and subject to such policy being fully prepaid, including with respect to the selection proviso of the brokerimmediately preceding sentence, available policy price and coverage options. in which event Parent shall cause cease to have any obligations under the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderimmediately preceding sentence.
(c) In the event that Parent, the Surviving Corporation or any The provisions of its successors or assigns shall this Section 6.12 (i) consolidate with or merge into any other Person and shall not be survive consummation of the continuing or surviving corporation or entity of such consolidation or merger or Integrated Mergers, (ii) transfer all or substantially all its properties and assets are intended to any Person thenbe for the benefit of, and will be enforceable by, each indemnified or insured party, his or her heirs and his or her representatives and (iii) are in each addition to, and not in substitution for, any other rights to indemnification or contribution that any such case, Parent shall cause proper provision to be made so that the successor and assign of Parent person may have by contract or the Surviving Corporation assumes the obligations set forth in this Section 5.4otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Hawaiian Electric Co Inc), Merger Agreement (Nextera Energy Inc)
Indemnification, Exculpation and Insurance. (a) Parent Each of Aztar and Merger Sub agree that Pinnacle agrees that, to the fullest extent permitted under applicable law, all rights to indemnification, exculpation, indemnification and advancement of expenses 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, officers, employees or fiduciaries under benefit plans currently indemnified of Aztar and officers of the Company its subsidiaries as provided in the Company Organizational Documentstheir respective certificate or articles of incorporation, employment agreements, by-laws (or elsewhere for acts comparable organizational documents) or omissions occurring prior to the Effective Time, including in respect of other agreements providing indemnification shall survive the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until in accordance with their terms. The certificate of incorporation and by-laws of the later Surviving Corporation shall continue to contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Aztar's certificate of incorporation and by-laws, which provisions shall not be amended, repealed or otherwise modified for a period of six years after from the Effective Time or in any manner that would adversely affect the expiration rights thereunder of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Lawindividuals.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, shall maintain in effect the directors' and officers’ ' liability (and directors’ liability and fiduciary liability fiduciary) insurance in respect of acts, errors policies covering acts or omissions occurring on or before prior to the Effective Time, including in Time with respect of the Merger Transactions, covering each such person to those persons who are currently covered by the Company’s Aztar's respective directors' and officers’ ' liability (and directors’ liability and fiduciary liability fiduciary) insurance policies on terms with respect to such coverage and amount no less in amounts at least as favorable than as those of such policies set forth in the relevant policy in effect on the date hereof. The provisions of this Agreement, except in no event shall the Surviving Corporation be required to make annual premium payments in connection therewith in excess of the immediately preceding sentence amount set forth on Section 5.06(b) of the Aztar Disclosure Letter (the "Maximum Amount"), and if the Surviving Corporation is unable to obtain the insurance required by this Section 5.06(b), the Surviving Corporation shall be deemed maintain the most advantageous policies of directors' and officers' insurance otherwise obtainable for an annual premium equal to have been satisfied ifthe Maximum Amount. Notwithstanding the foregoing, either Pinnacle or Aztar may elect in lieu of the foregoing insurance, prior to the Effective Time, to obtain and fully pay for a policy (providing only for the Side A coverage for the Aztar Indemnified Parties (as defined in clause (c) below) with a claims period of at least six years from the Effective Time from an insurance carrier with the same or better credit rating as Aztar's current insurance carrier with respect to directors' and officers' liability insurance in an amount and scope the same as Aztar's existing policies with respect to matters existing or occurring at or prior to the Effective Time; provided that the cost thereof does not exceed $4,435,000.
(c) From and after the Effective Time, Pinnacle agrees to cause the Surviving Corporation to indemnify and hold harmless each present or former director and officer of Aztar or any of its subsidiaries (in each case, for acts or failures to act in such capacity), determined as of the date hereof, and any person who becomes such a director or officer between the date hereof and the Effective Time (collectively, the "Aztar Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Company or Parent Effective Time (on behalf including any matters arising in connection with the transactions contemplated by this Agreement), to the fullest extent permitted by applicable law (and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under applicable law, provided that if required by applicable law the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification).
(d) The obligations of the Surviving Corporation) Corporation under this Section 5.06 shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and not be terminated or modified by such parties in a manner so as to adversely affect any Aztar Indemnified Party or any other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior person entitled to the Effective Timebenefit of Sections 5.06(a) and (b), except that as the Company case may not commit or spend on such “tail” policies annual premiums in excess of 300% be, to whom this Section 5.06 applies without the consent of the annual premiums paid by affected Aztar Indemnified Party or such other person, as the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amountcase may be. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause If the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) shall consolidate with or merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any Person individual, corporation or other entity, then, and in each such case, Parent proper provisions shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Corporation, as the case may be, shall assume all of the obligations set forth in this Section 5.45.06.
(e) The provisions of Section 5.06 are (i) intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Aztar Corp), Merger Agreement (Aztar Corp)
Indemnification, Exculpation and Insurance. (a) Each of Parent and Merger Sub agree that the Company agrees that, to the fullest extent permitted under applicable law, all rights to indemnification, exculpation, and 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 and officers officers, and the fiduciaries currently indemnified under benefit plans of the Company and its subsidiaries, as provided in the Company Organizational Documentstheir respective certificate or articles of incorporation, employment agreementsby-laws (or comparable organizational documents) or other agreements providing indemnification, advancement or elsewhere for acts or omissions occurring prior to the Effective Timeexculpation, including in respect of shall survive the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until in accordance with their terms, that Parent shall cause the later of Surviving Corporation to honor all such rights and that for six (6) years from and after the Effective Time Time, no such provision in any certificate or articles of incorporation, by-laws (or comparable organizational document) or other agreement shall be amended, modified or repealed in any manner that would adversely affect the expiration of the applicable statute of limitations rights or protections thereunder to any such individual with respect to any such claims against directors acts or officers omissions occurring at or prior to the Effective Time. From and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to assume all indemnification agreements in effect as of the Company arising out date of such acts or omissionsthis Agreement and to otherwise honor and perform, except as otherwise required by applicable Lawin accordance with their respective terms, each of the covenants contained in this Section 5.05(a).
(b) For six (6) years from and after the Effective Time, the Surviving Corporation shall maintain in effect the directors’ and officers’ liability (and fiduciary) insurance policies currently maintained by the Company covering acts or omissions occurring on or prior to the Effective Time with respect to those persons who are currently covered by the Company’s respective directors’ and officers’ liability (and fiduciary) insurance policies on terms with respect to such coverage and in amounts no less favorable to the Company Indemnified Parties than those set forth in the relevant policy in effect on the date of this Agreement; provided that the annual cost thereof shall not exceed 350% of the annual cost of such policies as of the date hereof. If such insurance coverage cannot be maintained for such cost, Parent shall maintain the most advantageous policies of directors’ and officers’ insurance otherwise obtainable for such cost. Prior to the Effective Time, the Company may purchase a six-year “tail” prepaid policy on terms and conditions no less favorable to the Company Indemnified Parties than the existing directors’ and officers’ liability (and fiduciary) insurance maintained by the Company, covering without limitation the transactions contemplated hereby; provided that the aggregate cost thereof shall not exceed 350% of the annual cost of the directors’ and officers’ liability (and fiduciary) insurance maintained by the Company as of the date hereof. If such “tail” prepaid policy has been obtained by the Company prior to the Effective Time, it shall satisfy the obligations set forth in the first two sentences of this paragraph (b).
(c) For six (6) years from and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ indemnify and directors’ liability hold harmless each present director and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect officer of the Merger TransactionsCompany or any of its subsidiaries (in each case, covering each for acts or failures to act in such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those capacity), determined as of such policies in effect on the date hereof. The provisions , and any person who becomes such a director or officer between the date hereof and the Effective Time (collectively, the “Company Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees, costs and expenses), judgments, fines, losses, claims, amounts paid in settlement, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of the immediately preceding sentence shall be deemed or relating to have been satisfied if, matters existing or occurring at or prior to the Effective Time, the Company whether asserted or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentionsclaimed prior to, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to after the Effective Time (including any matters arising in connection with respect the transactions contemplated by this Agreement), to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price fullest extent permitted by applicable law (and coverage options. Parent shall cause the Surviving Corporation shall also advance expenses (including reasonable attorneys’ fees, costs and expenses) to maintain such policies in full force and effect for their full term, and continue persons as incurred to honor the obligations thereunderfullest extent permitted under applicable law; provided that the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification.
(cd) In The obligations of Parent and the event that Surviving Corporation under this Section 5.05 shall not be terminated or modified by such parties in a manner so as to adversely affect any Company Indemnified Party, or any other person entitled to the benefit of Section 5.05(a) and Section 5.05(b), as the case may be, to whom this Section 5.05 applies without the consent of the affected Company Indemnified Party, or such other person, as the case may be. If Parent, the Surviving Corporation or any of its their respective successors or assigns shall (i) shall consolidate with or merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any Person individual, corporation or other entity, then, and in each such case, Parent proper provisions shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Corporation, as the case may be, shall assume all of the obligations of Parent, or the Surviving Corporation, as the case may be, set forth in this Section 5.45.05(a).
(e) The provisions of this Section 5.05 are (i) intended to be for the benefit of, and, from and after the Effective Time, will be enforceable by, each of the Company Indemnified Parties and (ii) in addition to, and not in substitution for or in limitation of, any other rights to indemnification, advancement of expenses, exculpation or contribution that any such person may have by contract or otherwise.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Vivint Solar, Inc.), Agreement and Plan of Merger (Sunedison, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all All rights to indemnification, exculpation, indemnification and advancement of expenses 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, officers and officers employees of the Company as and its Subsidiaries (the “Indemnified Parties” provided in the Company Organizational DocumentsCertificate, employment agreementsthe Company By-laws or existing indemnification agreements (in each case, or elsewhere for acts or omissions occurring prior to as in effect on the Effective Time, including in respect of the Merger Transactions, date hereof) shall be assumed and performed by the Surviving Corporation in the Merger, without further action, as of the Effective Time and shall survive the Merger and shall continue in full force and effect until in accordance with their terms. Parent shall indemnify and hold harmless, and provide advancement of expenses to the later Indemnified Parties to the same extent such persons are indemnified or have the right to advancement of six years after the Effective Time or the expiration expenses as of the applicable statute of limitations with respect to any such claims against directors or officers of date hereof by the Company arising out of such acts or omissions, except as otherwise required by applicable Lawpursuant to the Company Certificate and the Company By-laws.
(b) For six (6) three years after the Effective Time, Parent shall, shall maintain in effect the Company’s current directors’ and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors acts or omissions occurring on at or before prior to the Effective Time, (including for acts or omissions occurring in respect connection with the approval of this Agreement and the consummation of the Merger Transactions, transactions contemplated hereby) covering each such person the Indemnified Parties currently covered by the Company’s directors’ and officers’ and directors’ liability and fiduciary liability insurance policies policy (a correct and complete copy of which has been previously made available to Parent), on terms with respect to such coverage and amount no less favorable than those of such policies policy in effect on the date hereof. The provisions of the immediately preceding sentence In satisfying its obligation under this Section 6.04(b) Parent shall not be deemed obligated to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual pay aggregate premiums in excess of 300% of the annual premiums amount paid by the Company in its last full fiscal year prior (which premiums are hereby represented and warranted by the Company to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”be approximately $120,000), it being understood and if agreed that Parent shall nevertheless be obligated to provide such premiums coverage as may be obtained for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderamount.
(c) In The covenants contained in this Section 6.04 are intended to be for the event that Parentbenefit of, and shall be enforceable by, each of the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person Indemnified Parties and their respective heirs and legal representatives, and shall not be the continuing deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to Law, contract or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation assumes the obligations set forth in this Section 5.4otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Unitedhealth Group Inc), Merger Agreement (NWH Inc)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all rights to indemnification, exculpation, and advancement of expenses indemnification existing in favor of the current or former directors and officers of the Company and its Subsidiaries as provided in their respective charter, by-laws or other organizational documents or in any indemnification agreement as in effect on the Company Organizational Documents, employment agreements, or elsewhere date hereof for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, Time shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of for not less than six years after following the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissionsTime, except as otherwise required by applicable Law. If any claims for indemnification are asserted or made within such period, all rights to indemnification in respect of such claims shall continue until the final disposition of such claims.
(b) For a period of not less than six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance to be maintained in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by effect the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained covering each Person currently covered by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance policy (a correct and fiduciary liability insurance (the “Base Amount”), and if such premiums complete copy of which has been heretofore made available to Parent) for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent acts or omissions occurring prior to the Effective Time Time; provided, that Parent may (i) substitute therefor policies of an insurance company (with the same or better credit rating than the carrier of the Company’s directors’ and officers’ liability insurance policies as of the date of this Agreement) the material terms of which, including coverage and amount, are no less favorable in any material respect to such directors and officers than the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection Company’s existing policies as of the brokerdate hereof or (ii) request that the Company obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective Time); and provided further, available policy price that in no event shall Parent or the Company be required to pay aggregate premiums for insurance under this Section 5.8(b) in excess of 250% of the amount of the aggregate premiums paid by the Company for fiscal year 2010 for such purpose (which fiscal year 2010 premiums are hereby represented and coverage options. warranted by the Company to be as set forth in Section 5.8(b) of the Company Disclosure Letter), it being understood that Parent shall cause the Surviving Corporation nevertheless be obligated to maintain provide such policies in full force and effect coverage as may be obtained for their full term, and continue to honor the obligations thereundersuch 250% amount.
(c) In the event that Parent, the Surviving Corporation or any of its their respective successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person Person, then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation Corporation, as the case may be, assumes the obligations set forth in this Section 5.45.8.
(d) The provisions of this Section 5.8 shall survive consummation of the Merger and are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her legal representatives.
Appears in 2 contracts
Samples: Merger Agreement (Accuray Inc), Merger Agreement (TomoTherapy Inc)
Indemnification, Exculpation and Insurance. (a) Each of Parent and Merger Sub agree that the Surviving Corporations shall, and Parent shall cause the Surviving Corporations to, assume and perform the obligations with respect to all rights to indemnificationindemnification and exculpation from liabilities, exculpation, and including advancement of expenses expenses, for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors and or officers of the Company Battery and RH as provided in the Company Battery Organizational Documents or the RH Organizational Documents, employment agreementsas applicable, or elsewhere for acts any indemnification Contract between such directors or omissions occurring prior to officers and Battery or RH, as applicable (in each case, as in effect on the date hereof), without further action, as of the Effective Time, including in respect of Time and such obligations shall survive the Merger Transactions, shall be assumed and performed by the Surviving Corporation Effective Time and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations in accordance with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Lawtheir terms.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation either Parent or any of its the Surviving Corporations or any of their respective successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and other assets to any Person Person, then, and in each such case, Parent shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the applicable Surviving Corporation assumes Corporation, as applicable, shall expressly assume the obligations set forth in this Section 5.46.14.
(c) For six (6) years after the Effective Time, Parent shall maintain (directly or indirectly through Battery’s or RH’s existing insurance programs, as applicable) in effect Battery’s and RH’s current directors’ and officers’ liability insurance in respect of acts or omissions occurring at or prior to the Effective Time, covering each Person currently covered by Battery’s and RH’s directors’ and officers’ liability insurance policy, as applicable, on terms with respect to such coverage and amounts no less favorable than those of such policy in effect on the date hereof; provided, however, that Parent may (i) substitute therefor policies of Parent with another insurance company of comparable standing to Battery’s or RH’s current insurer, as applicable, and containing terms and conditions, including with respect to coverage (including as coverage relates to deductibles and exclusions) and amounts no less favorable to such directors and officers or (ii) request that Battery or RH, as applicable, obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective Time); provided, further, that in satisfying its obligation under this Section 6.14(c), none of Battery, RH or Parent shall be obligated to pay more than 300% of the premiums paid as of the date of this Agreement by Battery or RH, as applicable, to obtain such coverage. It is understood and agreed that in the event such coverage cannot be obtained for such amount or less in the aggregate, Parent shall only be obligated to provide the maximum coverage as may be obtained for such aggregate amount.
(d) The provisions of this Section 6.14 (i) are intended to be for the benefit of, and will be enforceable from and after the Effective Time by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by Contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Harbinger Capital Partners Master Fund I, Ltd.), Merger Agreement (Spectrum Brands, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent Each of Parent, MergerSub and Merger Sub agree the Surviving Corporation agrees that all rights to indemnification, exculpationadvance and reimbursement of expenses, and advancement of expenses or exculpation existing in favor of of, and all limitations on the current personal liability of, each present and former director or former directors and officers officer of the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere for with respect to acts or omissions occurring prior to arising on or before the Effective Time, including Time provided for in respect its Organizational Documents or in Contracts in effect as of the Merger Transactions, shall be assumed date hereof and performed by the Surviving Corporation and disclosed to Parent shall continue in full force and effect until the later of six years after the Effective Time or Time. From and after the expiration of Effective Time, Parent shall cause the applicable statute of limitations Surviving Corporation to comply with respect their obligations that correspond to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Lawrights.
(b) For a period of six (6) years after from the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies be maintained in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters acts or omissions arising at on or before the Effective Time; provided, however, that Parent may substitute therefor policies of substantially equivalent coverage and amounts containing terms no less favorable to such directors or officers; provided further, however, that, after the Effective Time, Parent shall not be required to pay annual premiums in excess of 250% of the last annual premium for the Company’s existing policies in respect of the coverages required to be obtained pursuant hereto (which annual premium is set forth on Section 6.05(b) of the Company Disclosure Schedule), but in such case shall purchase as much coverage as may be purchased for such amount. The Company may purchase, prior to the Offer Closing Date, or Parent may purchase or cause the Company to purchase, prior to the Effective Time, except that the Company may not commit or spend on such a six-year prepaid “tail” policies annual premiums in excess of 300% of policy on terms and conditions providing substantially equivalent benefits as the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then maintained by the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to acts or omissions occurring at or before the procurement Effective Time, covering without limitation the Transactions; provided that the cost of such “tail” policies, subject to such policy being fully prepaid, including with respect purchased by the Company prior to the selection Offer Closing Date shall not exceed 250% of the brokerlast annual premium paid by the Company for directors’ and officers’ liability insurance and fiduciary liability insurance. If such “tail” prepaid policy has been obtained, available policy price from and coverage options. after the Effective Time Parent shall cause the Surviving Corporation such policy to maintain such policies be maintained in full force and effect effect, for their its full term, and continue cause all obligations thereunder to honor be honored by the obligations thereunderSurviving Corporation, and no other party shall have any further obligation to purchase or pay for insurance hereunder.
(c) In the event that Parent, Parent or the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person Person, then, and in each such case, Parent shall cause proper provision to shall be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Corporation, as the case may be, assume the applicable obligations set forth in this section.
(d) The provisions of this Section 5.46.05 (i) are intended to be for the benefit of, and will be enforceable by, each director, officer or other Person referred to herein, his or her heirs and his or her Representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by Contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Galaxy Dream Corp), Merger Agreement (Rc2 Corp)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree agrees that all rights to indemnification, exculpation, and advancement of expenses existing in favor of the current or former directors and officers of the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ perform all of the obligations of the Surviving Corporation with respect to all rights of the individuals who on or prior to the Effective Time were directors, officers or employees of the Company or any of its Subsidiaries (collectively, the “Indemnitees”) to indemnification and directors’ liability and fiduciary liability insurance in respect of acts, errors exculpation from liabilities for acts or omissions occurring on at or before prior to the Effective Time, including Time as provided in respect the Company Governing Documents or other agreements of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those Company or in comparable organizational documents or other agreements of such policies any of its Subsidiaries as now in effect on and such obligations shall survive the date hereof. The provisions Merger and shall continue in full force and effect in accordance with their terms.
(b) Each of Parent, the Surviving Corporation and the applicable Indemnitee shall cooperate, and cause their respective Affiliates to cooperate, in the defense of any claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(c) As of the immediately preceding sentence Acceptance Date, the Company shall be deemed to have been satisfied ifobtained, and for a six-year period thereafter, the Surviving Corporation shall maintain in effect, a so-called “tail” policy for such six-year period covering acts or omissions occurring at or prior to the Effective Time, including all acts or omissions relating to this Agreement and the Company or Parent (on behalf of transactions contemplated herein, with respect to those Persons who are currently covered by the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of Company’s directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company policy on terms with respect to matters arising at or prior such coverage and amount no less favorable to the Effective Time, except that the Company may not commit or spend Company’s directors and officers currently covered by such insurance than those of such policy in effect on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”Minimum Insurance); provided, and if such premiums for such “tail” policies would exceed 300% of the Base Amounthowever, then the Company that in no event shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation be required to maintain such policies in full force and effect for their full term, and continue expend pursuant to honor the obligations thereunderthis Section 6.02(c) more than $5,000,000.
(cd) The provisions of this Section 6.02 are intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs and his or her representatives.
(e) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person Person, then, and in each such case, Parent shall cause proper provision to shall be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes shall assume all of the obligations thereof set forth in this Section 5.46.02.
(f) The obligations of Parent and the Surviving Corporation under this Section 6.02 shall not be terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 6.02 applies without the written consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 6.02 applies shall be third party beneficiaries of this Section 6.02).
(g) Parent, from and after the Acceptance Date, shall unconditionally guarantee the timely payment of all funds owed by, and the timely performance of all other obligations of, the Surviving Corporation under this Section 6.02. Parent agrees that its payment obligations hereunder are unconditional, irrespective of the validity or enforceability of this Agreement against the Surviving Corporation or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor (other than the defenses of statute of limitations, which are not waived). Parent hereby acknowledges that its obligations under this Section 6.02 constitute a guaranty of payment and not merely of collectability and Parent hereby waives (i) promptness, diligence, presentment, demand of payment, protest and order in connection with this guarantee and (ii) any requirement that any party enforcing the guarantee exhaust any right to take any action against the Surviving Corporation or any other Person prior to or contemporaneously with proceeding to exercise any right against Parent hereunder.
Appears in 2 contracts
Samples: Merger Agreement (Engelhard Corp), Merger Agreement (Iron Acquisition Corp)
Indemnification, Exculpation and Insurance. (a) From and after the Effective Time, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) indemnify, defend and Merger Sub agree that all rights to indemnification, exculpationhold harmless, and advancement of advance expenses existing in favor of to, the current individuals who at or former prior to the Effective Time were directors and or officers of the Company as provided in or any of its Subsidiaries (collectively, the Company Organizational Documents, employment agreements, or elsewhere for “Indemnitees”) with respect to all acts or omissions occurring by them in their capacities as such at any time prior to the Effective Time, including in respect to the fullest extent required by: (i) certificate of incorporation or bylaws (or comparable charter or organizational documents) of the Merger TransactionsCompany or any of its Subsidiaries as in effect on the date of this Agreement; and (ii) any applicable contract which has been disclosed to Parent at or prior to the date hereof and as in effect on the date of this Agreement or, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against persons who become directors or officers of the Company arising out or any of such acts its Subsidiaries after the date hereof and prior to the Closing, which is entered into and disclosed to Parent after the date hereof and which is in the form and substance of the agreements that have been disclosed to Parent at or omissions, except as otherwise required by applicable Lawprior to the date hereof.
(b) For six (6) years after the Effective Time, Parent shall, shall provide directors and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary officers liability insurance in respect of acts, errors covering acts or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to those Indemnitees who are covered by the procurement Company’s and its Subsidiaries’ directors’ and officers’ liability insurance policies as of such “tail” policies, subject to such policy being fully prepaid, including the Closing on terms with respect to such coverage and amount no less favorable in the selection aggregate than the Company’s and its Subsidiaries’ current directors’ and officers’ liability insurance policies; provided, however, that if the aggregate annual premiums for such insurance at any time during such period shall exceed two hundred percent (200%) of the brokerper annum rate of premium paid by the Company as of the date hereof for such insurance, available policy price and coverage options. then Parent shall cause the Surviving Corporation provide only such coverage as shall then be available at an annual premium equal to maintain two hundred percent (200%) of such policies in full force and effect for their full term, and continue to honor the obligations thereunderrate.
(c) In This Section 6.9 shall survive the event that Parent, consummation of the Merger and shall be binding on all successors and assigns of Parent and the Surviving Corporation or any Corporation. The Indemnitees to whom this Section 6.9 applies shall be third party beneficiaries of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity this Section 6.9. The provisions of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person then, and in each such case, Parent shall cause proper provision this Section 6.9 are intended to be made so that for the successor benefit of each Indemnitee, his or her heirs and assign of Parent his or the Surviving Corporation assumes the obligations set forth in this Section 5.4her representatives.
Appears in 2 contracts
Samples: Merger Agreement (Solexa, Inc.), Merger Agreement (Illumina Inc)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all rights to indemnification, exculpation, and advancement of expenses and exculpation existing in favor of the current or former directors directors, officers and officers employees of the Company and its Subsidiaries and the fiduciaries of any Company Plans (the “Indemnified Persons”) as provided in (i) the Company Organizational DocumentsCharter or Company Bylaws, employment agreements(ii) the certificates of incorporation or bylaws or other organizational documents of such Subsidiaries, (iii) such Company Plans, or elsewhere for (iv) any agreements between an Indemnified Person and the Company or one of its Subsidiaries and which is included in the Company SEC Documents or listed in Section 5.10 of the Company Disclosure Letter, in each case as in effect on the date of this Agreement, with respect to acts or omissions occurring prior to the Effective Time, including in respect of shall survive the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later in accordance with their terms for a period of six years after the Effective Time or the expiration of the applicable statute of limitations or, if longer, for such period as is set forth in any such agreement with an Indemnified Person, in each case with respect to any such claims against directors or officers of the Company such Indemnified Persons arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For a period of six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance to be maintained in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by effect the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance covering each Person currently covered by the Company’s directors’ and fiduciary officers’ liability insurance maintained by the Company with respect policy (a correct and complete copy of which has been heretofore made available to matters arising at Parent) for acts or omissions occurring prior to the Effective Time; provided, except that Parent may (i) substitute therefor policies of an insurance company the material terms of which, including coverage and amount, are no less favorable in any material respect to such directors and officers than the Company’s existing policies as of the date hereof, or (ii) request that the Company may not commit obtain prior to the Effective Time such extended reporting period coverage under its existing insurance programs; and provided, further, that in no event shall Parent or spend on such “tail” policies the Company be required to pay annual premiums for insurance under this Section 5.10 in excess of 300250% of the amount of the annual premiums paid by the Company in its last full for fiscal year prior 2011 for such purpose (which fiscal year 2011 premiums are hereby represented and warranted by the Company to be as set forth in Section 5.10 of the date hereof Company Disclosure Letter), it being understood that Parent shall nevertheless be obligated to provide as much coverage as may be obtained for such 250% amount. Notwithstanding the Company’s current policies foregoing, in lieu of the arrangements contemplated by this Section 5.10(b), before the Effective Time, the Company shall be entitled to purchase a “tail” directors’ and officers’ liability insurance and fiduciary liability insurance (policy covering the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% matters described in this Section 5.10(b) so long as the Company does not pay more than the amount set forth on Section 5.10 of the Base AmountCompany Disclosure Letter, and, if the Company elects to purchase such a policy before the Effective Time, then Parent’s obligations under this Section 5.10(b) shall be satisfied so long as Parent causes such policy to be maintained in effect for a period of six years following the Effective Time.
(c) For a period of six years after the Effective Time, Parent and the Surviving Corporation shall indemnify and hold harmless each Indemnified Person against all claims, losses, liabilities, damages, judgments and fines (and reasonable fees, costs and expenses, including attorneys’ fees and disbursements) incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Person is or was an officer, director or employee of the Company shall purchase policies that provide the maximum coverage available or any of its Subsidiaries with respect to matters existing or occurring at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent or prior to the Effective Time with respect (including this Agreement and the transactions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the procurement fullest extent permitted under applicable Law; provided, that the foregoing indemnification shall be unavailable if the Indemnified Person is determined in a final non-appealable judgment of a court of competent jurisdiction to have failed to act in good faith and in a manner such Indemnified Person reasonably believed to be in the best interests of the Company or, in the case of a criminal action or proceeding, to have had reasonable cause to believe that such Indemnified Person’s conduct was unlawful. In the event of any such Action, each Indemnified Person shall be entitled to advancement of expenses incurred in the defense of such “tail” policiesAction; provided, subject that any Person to whom expenses are advanced provides an undertaking to repay such policy being fully prepaidadvances if it is ultimately determined that such Person is not entitled to indemnification hereunder. In the event of any such Action, including with respect to the selection (i) each of the broker, available policy price Parent and coverage options. Parent shall cause the Surviving Corporation shall cooperate with the Indemnified Person in the defense of any such Action and (ii) neither Parent nor the Surviving Corporation shall settle, compromise or consent to maintain the entry of any judgment in any Action pending or threatened in writing to which an Indemnified Person is a party (and in respect of which indemnification could be sought by such policies in full force and effect for their full termIndemnified Person hereunder), and continue to honor the obligations thereunderunless such settlement, compromise or consent includes an unconditional release of such Indemnified Person from all liability arising out of such Action.
(cd) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person Person, then, and in each such case, Parent and the Surviving Corporation shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation assumes the obligations set forth in this Section 5.45.10.
(e) The provisions of this Section 5.10 shall survive consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each Indemnified Person, his or her heirs and his or her legal representatives.
Appears in 2 contracts
Samples: Merger Agreement (Southeastern Grocers, LLC), Merger Agreement (Winn Dixie Stores Inc)
Indemnification, Exculpation and Insurance. (a) For six (6) years after the Effective Time (the “Indemnity Period”), Parent and Merger Sub agree agrees that all rights to indemnification, exculpationreimbursement, and 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 or officers of the Company and the Company Subsidiaries as provided in their respective certificates of incorporation or bylaws (or comparable organizational documents) shall continue in full force and effect in accordance with their terms (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 as provided and the Company Subsidiaries than those set forth in the Company’s Certificate of Incorporation and Bylaws as of the date of this Agreement, which provisions thereafter until the end of the Indemnity Period shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any current or former directors or officers of the Company Organizational Documentsand the Company Subsidiaries. Without limiting the foregoing, employment agreementsfrom and after the Effective Time until the end of the Indemnity Period, the Surviving 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 elsewhere for acts or omissions occurring who becomes prior to the Effective Time, including in respect a director or officer of the Merger TransactionsCompany or any of the Company Subsidiaries or, at the request of the Company, of any Joint Venture (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any claim, action, suit or proceeding, whether civil, criminal, administrative or investigative, (i) with respect to matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated by this Agreement) or (ii) arising out of or pertaining to the fact that the Company Indemnified Party is or was a director or officer of the Company or any Company Subsidiary or is or was serving at the request of the Company or any Company Subsidiary as a director or officer of another Person 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 assumed and performed subject to any limitation imposed from time to time under applicable Law. In the event of any such claim, action, suit or proceeding, each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit or proceeding from the Surviving Corporation, subject to any limitation imposed from time to time under applicable Law, within 20 Business Days of receipt by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of from the Company arising out Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking to repay such acts or omissions, except as otherwise required advances if it is ultimately determined by applicable Lawa final non-appealable adjudication that such person is not entitled to indemnification.
(b) For a period of six (6) years from and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect shall either cause to coverage and amount no less favorable than those of such policies be maintained in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance maintained by the Company or provide substitute policies for the Company and fiduciary its current and former directors and officers of the Company and the Company Subsidiaries who are currently covered by the directors’ and officers’ liability insurance coverage currently maintained by the Company, in either case, with limits not less than the existing coverage and having other terms not less favorable in the aggregate to the insured persons than the directors’ and officers’ liability insurance coverage currently maintained by the Company with respect to matters claims arising at from facts or prior to events that occurred on or before the Effective TimeTime (with insurance carriers having at least the same or better rating as the Company’s current insurance carrier for such insurance policies), except that in no event shall the Company may not commit or spend on Surviving Corporation be required to pay with respect to such “tail” insurance policies annual premiums in excess of an aggregate amount for such six year period that is more than 300% of the annual premiums premium most recently paid by the Company in its last full fiscal year prior to the date hereof of this Agreement, which amount is set forth in Section 6.05(b) of the Company Disclosure Letter (the “Maximum Amount”), and if the Surviving Corporation is unable to obtain the insurance required by this Section 6.05(b) it shall obtain as much comparable insurance as possible within such six-year period for an aggregate amount equal to the Company’s current policies Maximum Amount. In lieu of such insurance, prior to the Closing Date the Company may, at its option (following reasonable consultation with Parent), purchase a fully prepaid “tail” directors’ and officers’ liability insurance for the Company and fiduciary its current and former directors and officers who are currently covered by the directors’ and officers’ liability insurance (coverage currently maintained by the “Base Company, such tail insurance to provide limits not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time; provided that in no event shall the aggregate cost of any such tail insurance exceed the Maximum Amount”); provided, and if further, that the Company’s procurement of such premiums for such fully prepaid “tail” policies would exceed 300% of policy in accordance with this sentence shall be deemed to satisfy in full the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal Surviving Corporation’s obligations pursuant to 300% of the Base Amountthis Section 6.05(b). The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to shall maintain such policies in full force and effect for their full term, and continue to honor in accordance with the obligations thereunderterms of this Agreement.
(c) The provisions of this Section 6.05 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each Company Indemnified Party, his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. Unless required by applicable Law, this Section 6.05 may not be amended, altered or repealed after the Effective Time in such a manner as to adversely affect the rights of any Company Indemnified Parties or any of their successors, assigns or heirs without the prior written consent of the affected Company Indemnified Parties.
(d) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Corporation and the Company Subsidiaries under this Section 6.05.
(e) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person Person, then, and in each such case, Parent the Surviving Corporation shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes assume the obligations set forth in this Section 5.46.05.
(f) If Parent, the Surviving Corporation or the Company is a party to any claim, action, suit or proceeding, as a condition to indemnification or advancement of expenses under this Section 6.05 with respect to such claim, action, suit or proceeding, each Company Indemnified Party shall cooperate with Parent and the Surviving Corporation in the defense of such action, suit or other proceeding for which indemnification may be sought pursuant to this Section 6.05, shall furnish or cause to be furnished records, documents, information and testimony and shall attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested by Parent in connection therewith. The provisions of this Section 6.05 are intended to be for the benefit of, and will be enforceable by, any of the Company Indemnified Parties, his or his heirs and his or her representatives.
Appears in 2 contracts
Samples: Merger Agreement (SS&C Technologies Holdings Inc), Merger Agreement (DST Systems Inc)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, assume and Merger Sub agree that perform the obligations with respect to all rights to indemnificationindemnification and exculpation from liabilities, exculpation, and including advancement of expenses expenses, for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors and or officers of the Company as provided in the Company Organizational DocumentsCertificate, employment agreementsthe Company Bylaws or any indemnification Contract between such directors or officers and the Company (in each case, or elsewhere for acts or omissions occurring prior to as in effect on the date hereof), without further action, as of the Effective Time, including in respect of Time and such obligations shall survive the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations in accordance with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Lawtheir terms.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and other assets to any Person person, then, and in each such case, Parent shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes shall expressly assume the obligations set forth in this Section 5.45.06.
(c) For six years after the Effective Time, Parent shall maintain (directly or indirectly through the Company’s existing insurance programs) in effect the Company’s current directors’ and officers’ liability insurance in respect of acts or omissions occurring at or prior to the Effective Time, covering each person currently covered by the Company’s directors’ and officers’ liability insurance policy (a complete and accurate copy of which has been heretofore delivered to Parent), on terms with respect to such coverage and amounts no less favorable than those of such policy in effect on the date hereof; provided, however, that Parent may (i) substitute therefor policies of Parent with an outside insurance company of comparable standing to the Company’s current insurer and containing terms and conditions, including with respect to coverage (including as coverage relates to deductibles and exclusions) and amounts no less favorable to such directors and officers or (ii) request that the Company obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective Time); provided, further, that in satisfying its obligation under this Section 5.06(c), neither the Company nor Parent shall be obligated to pay more than 300% of the premiums paid as of the date of this Agreement by the Company to obtain such coverage. It is understood and agreed that in the event such coverage cannot be obtained for such amount or less in the aggregate, Parent shall only be obligated to provide the maximum coverage as may be obtained for such aggregate amount.
(d) The provisions of this Section 5.06 (i) are intended to be for the benefit of, and will be enforceable from and after the Effective Time by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Premium Standard Farms, Inc.), Merger Agreement (Smithfield Foods Inc)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all rights to indemnification, exculpation, exculpation and advancement of expenses existing in favor of the current or former directors and officers of the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere indemnification for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the Transactions), now existing in favor of the current directors and officers of the Company or its Subsidiaries as provided in their respective Organizational Documents or in any written indemnification agreement (accurate and complete copies of which have been provided to Parent (and are listed on behalf Section 8.6(a) of the Company Disclosure Letter) as in effect as of the date of this Agreement, shall survive the Merger and shall continue in full force and effect. The Surviving CorporationCorporation shall, and Parent shall cause the Surviving Corporation to (including, if necessary, by providing the Surviving Corporation with the necessary financial resources), indemnify, defend and hold harmless, and advance expenses to Indemnitees with respect to all acts or omissions by them in their capacities as such at any time prior to the Effective Time, solely to the extent required by: (i) the Articles of Incorporation or the Bylaws or the equivalent Organizational Documents of any of its Subsidiaries as in effect on the date of this Agreement; and (ii) any indemnification agreements of the Company or its Subsidiaries or other applicable Contract as in effect on the date of this Agreement and listed on Section 8.6(a) of the Company Disclosure Letter.
(b) Prior to the Effective Time, the Company shall purchase six use its reasonable best efforts to (6and if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to) obtain a six-year prepaid pre-paid “tail policy” covering acts or omissions at or prior to the Effective Time with respect to those persons who are currently covered by the current policies of the directors’ and officers’ liability insurance maintained by the Company (the “D&O Insurance”) with such coverage levels not materially less favorable to such indemnified persons than those of the D&O Insurance; provided, that (i) such “tail” insurance policies on terms shall not require the payment of an aggregate annual premium in excess of 300% of the aggregate annual premium most recently paid by the Company prior to the date hereof to maintain the D&O Insurance (and conditions providing if the annual premium of such insurance coverage retentionsexceeds such amount, limits the Company or the Surviving Corporation shall be obligated to (and other material terms as of the Effective Time Parent shall cause the Surviving Corporation to) obtain a policy with the greatest coverage available for a cost not exceeding such amount) and (ii) prior to the Closing, the Company shall not enter into any Contract for a “tail” policy without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). If the Company or the Surviving Corporation shall for any reason fail to obtain such “tail” insurance policies as of the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect for a period of at least six years from and after the Effective Time the current D&O Insurance with levels of coverage no less favorable than that provided as of the current date of this Agreement, or the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, use reasonable best efforts to purchase comparable policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by for such six year period with levels of coverage no less favorable as provided under the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% D&O Insurance as of the date of this Agreement; provided, however, that neither Parent nor the Surviving Corporation shall be required to pay an aggregate annual premiums paid by the Company in its last full fiscal year prior to the date hereof premium for the Company’s current such policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed in excess of 300% of the Base Amount, then aggregate annual premium most recently paid by the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect date of this Agreement to maintain such insurance (and if the procurement annual premium of such “tail” policiesinsurance coverage exceeds such amount, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause or the Surviving Corporation shall be obligated to maintain obtain a policy with the greatest coverage available for a cost not exceeding such policies in full force and effect for their full term, and continue to honor the obligations thereunderamount).
(c) The Indemnitees to whom this Section 8.6 applies are intended (and shall be) third party beneficiaries of this Section 8.6.
(d) Notwithstanding anything contained in Sections 11.1 or 11.10 to the contrary, this Section 8.6 shall survive the consummation of the Offer and the Merger indefinitely and shall be binding, jointly and severally, on all successors and assigns of Parent, the Surviving Corporation and its Subsidiaries, and shall be enforceable by the Indemnitees. In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all a majority of its properties and assets to any Person Person, then, and in each such case, Parent shall cause proper provision to shall be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes shall succeed to the obligations set forth in this Section 5.48.6.
Appears in 2 contracts
Samples: Merger Agreement (Pep Boys Manny Moe & Jack), Merger Agreement (Icahn Enterprises Holdings L.P.)
Indemnification, Exculpation and Insurance. (a) From and after the Effective Time, Parent shall cause the Surviving Corporation to assume and Merger Sub agree that perform all rights to indemnification, exculpationindemnification existing in favor of, and all rights to advancement of expenses existing in favor of to, the current or and former directors and officers of the Company (including any employee that is a fiduciary under any Benefit Plan) as provided in the Company Organizational DocumentsCharter or the Company Bylaws as in effect on the date of this Agreement (and the Surviving Corporation shall cause its Subsidiaries to assume and perform all such rights to the current and former directors and officers of such Subsidiaries as provided in the articles of incorporation and bylaws (or comparable organizational documents) of each such Subsidiary as applicable to such persons as in effect on the date of this Agreement) for (i) the fact that such person is or was an officer, employment agreementsdirector, employee, fiduciary or agent of Company or any of its Subsidiaries, or elsewhere for (ii) matters, acts or omissions arising, existing or occurring prior to and through the Effective Time (including matters, acts or omissions occurring prior to in connection with this Agreement and the Effective Time, including in respect consummation of the Merger Transactionstransactions contemplated hereby), shall be assumed and performed by the Surviving Corporation and such rights shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against such directors or and officers of the Company arising out of such matters, acts or omissions, except as otherwise required by applicable Law, and to include and cause to be maintained in effect in the Surviving Corporation’s (or any successor’s) articles of incorporation (or in the case of the Surviving Corporation’s Subsidiaries, the articles of incorporation and bylaws (or comparable organizational documents) of each such Subsidiary), for a period of six years after the Effective Time, the current provisions regarding elimination of liability of directors.
(b) For a period of six (6) years after the Effective Time, Parent shall, and or shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the effect Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance covering each Person currently covered by Company’s directors’ and fiduciary officers’ liability insurance maintained by the Company with respect policy (correct and complete copies of which have been heretofore made available to matters arising at Parent) for acts or omissions occurring prior to and through the Effective Time; provided, except that in lieu of such obligation, (i) Parent or the Surviving Corporation may substitute therefor policies of an insurance company with the same or better rating as Company’s current insurance carrier the material terms of which, including coverage and amount, are no less favorable in any material respect to such directors and officers than Company’s existing policies as of the date hereof or (ii) in consultation with Parent, Company may obtain extended reporting period coverage under Company’s existing insurance programs (to be effective as of the Effective Time) for a period of six years after the Effective Time for a cost not commit or spend on such “tail” policies in excess of three times the current annual premiums for such insurance; and provided, further, that in no event shall Parent or the Surviving Corporation be required to pay annual premiums for insurance under this Section 5.8(b) in excess of 300% of the most recent annual premiums paid by Company for such purpose (which premiums are hereby represented and warranted by Company to be as set forth in Section 5.8(b) of the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”Disclosure Letter), and it being understood that if such the annual premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policiesinsurance coverage exceed such amount, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause or the Surviving Corporation shall nevertheless be obligated to maintain provide such policies in full force and effect coverage as may be obtained for their full term, and continue to honor the obligations thereundersuch 300% amount.
(c) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person Person, then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation assumes the obligations set forth in this Section 5.45.8.
(d) The provisions of this Section 5.8 shall survive consummation of the Merger and are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her legal representatives. The rights of the current and former directors and officers of Company hereunder shall be in addition to, and not in limitation of, any other rights such persons may have under the articles of incorporation or bylaws or other organization or governing documents of Company or any of its Subsidiaries or the Surviving Corporation, any other indemnification arrangement, the FBCA or otherwise. Subsequent amendment of the articles of incorporation, bylaws or other organizational or governing documents of the Surviving Corporation shall not diminish or impair the rights of any such current or former directors and officers.
Appears in 2 contracts
Samples: Merger Agreement (PSS World Medical Inc), Merger Agreement (McKesson Corp)
Indemnification, Exculpation and Insurance. (a) Except as may be required by applicable Law, Parent and Merger Sub the Company agree that all rights to indemnification, exculpation, indemnification and advancement of expenses existing in favor of the current or former directors and officers of the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time, including Time and rights to advancement of expenses relating thereto now existing in respect favor of any present (as of the Effective Time) or former officer, director or employee of the Company and its Subsidiaries (the “Indemnified Parties”) as provided in the articles of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement between such Indemnified Party and the Company or any of its Subsidiaries disclosed in Section 5.11(a) of the Company Disclosure Letter shall survive the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years Indemnified Party. From and after the Effective Time, Parent shallshall guarantee and stand surety for, and shall cause the Surviving Corporation toto honor, maintain officers’ and directors’ liability and fiduciary liability insurance in respect accordance with their respective terms, each of acts, errors or omissions occurring on or before the covenants contained in this Section 5.11.
(b) For a period of six years from the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect Parent shall either cause to coverage and amount no less favorable than those of such policies be maintained in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries or cause to be provided substitute policies or purchase or cause the Surviving Corporation to purchase, a “tail policy,” in either case of at least the same coverage and containing terms and conditions that are substantially equivalent with such policy with respect to matters arising at on or before the Effective Time; provided, however, that after the Effective Time, Parent shall not be required to pay with respect to such insurance policies in respect of any one policy year annual premiums in excess of 250% of the last annual premium paid by the Company prior to the date hereof in respect of the coverage required to be obtained pursuant hereto (the “Maximum Premium”), but in such case shall purchase as much coverage as reasonably practicable for such amount; provided further, that if the Surviving Corporation purchases a “tail policy” and the coverage thereunder costs more than the Maximum Premium, the Surviving Corporation shall purchase the maximum amount of coverage that can be obtained for the Maximum Premium. Notwithstanding the foregoing, the Company may purchase, prior to the Effective Time, except that a six-year prepaid “tail policy” on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then maintained by the Company shall purchase policies that provide and its Subsidiaries with respect to matters arising on or before the maximum coverage available at Effective Time, covering without limitation the transactions contemplated hereby, for an annual premium equal amount not to 300% of exceed the Base AmountMaximum Premium. The If such tail prepaid policy has been obtained by the Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policiesTime, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. (i) Parent shall cause the Surviving Corporation such policy to maintain such policies be maintained in full force and effect effect, for their its full term, and continue cause all obligations thereunder to honor be honored by the obligations thereunderSurviving Corporation and (ii) no party shall have any obligation to purchase or maintain any other insurance pursuant to this Section 5.11.
(c) Notwithstanding anything herein to the contrary, if any Action (whether arising before, at or after the Effective Time) is instituted against any Indemnified Party on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 5.11 shall continue in effect until the final disposition of such Action.
(d) The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise. The provisions of this Section 5.11 shall survive the consummation of the Merger and, notwithstanding any other provision of this Agreement that may be to the contrary, expressly are intended to benefit, and shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives.
(e) In the event that Parent, Parent or the Surviving Corporation or any of its their respective successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person Person, then, and in each such case, Parent shall cause proper provision to shall be made so that the successor and assign successors or assigns of Parent or the Surviving Corporation assumes Corporation, as the case may be, shall assume the obligations set forth in this Section 5.45.11.
Appears in 2 contracts
Samples: Merger Agreement (MKS Instruments Inc), Merger Agreement (Electro Scientific Industries Inc)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all rights Prior to indemnificationthe Offer Closing, exculpation, and advancement of expenses existing in favor of the current or former directors and officers of the Company as provided shall use its reasonable best efforts to purchase a “tail” or “runoff” officers’ and directors’ liability insurance policy in the Company Organizational Documents, employment agreements, or elsewhere for respect of acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies policy on terms with respect to coverage coverage, deductibles and amount amounts no less favorable than those of such policies policy in effect on the date hereof. The provisions of this Agreement for the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms period following the Closing and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect at a price not to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of exceed 300% of the annual premiums paid by amount per annum the Company paid in its last full fiscal year prior to the date hereof for of this Agreement, which amount is set forth on Section 7.06(a) of the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance Company Disclosure Letter (the “Base AmountCurrent Premium”), and if such premiums for such . If the Company or Parent obtains prepaid “tail” or “runoff” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time in accordance with respect to this Section 7.06(a), the procurement of such “tail” policiesSurviving Corporation shall, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to to, maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder. If the Company fails to purchase such “tail” or “runoff” policy prior to Closing, then either (i) Parent may purchase such “tail” or “runoff” policy on behalf of the Company or the Surviving Corporation or (ii) the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain an officers’ and directors’ liability insurance policy in respect of acts or ommisions occuring prior to the Effective Time covering each such person currently covered by the Company’s officers’ and directors’ liability insurance policy on terms with respect to coverage and amount no less favorable than those of such policy in effect as of the date of this Agreement for a period of six (6) years after the Effective Time; provided further, that in satisfying its obligation under this Section 7.06(a)(ii), neither Parent nor the Surviving Corporation shall be obligated to pay annual premiums in excess of 300% of the Current Premium and if such premiums for such insurance would at any time exceed 300% of the Current Premium, then Parent or the Surviving Corporation shall cause to be maintained policies of insurance that, in Parent or the Surviving Corporation’s good faith judgment, provide the maximum coverage available at an annual premium equal to 300% of the Current Premium.
(b) From and after the Acceptance Time, Parent shall cause the Surviving Corporation to fulfill and honor in all respects the obligations of the Company and its Subsidiaries pursuant to (i) each indemnification agreement in effect between the Company or any of its Subsidiaries and any 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 “Indemnified Party”) made available to Parent; and (ii) any indemnification provision and any exculpation provision set forth in the articles of incorporation or bylaws of the Company as in effect on the date of this Agreement, in each case, to the fullest extent permitted under applicable Law. From the Acceptance Time through the sixth (6th) anniversary of the date on which the Acceptance Time occurs, the articles of incorporation and bylaws of the Surviving Corporation shall contain, and Parent shall cause the articles of incorporation and bylaws of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of each Indemnified Party than are set forth in the articles of incorporation and bylaws of the Company as in effect on the date of this Agreement.
(c) Except as otherwise required by applicable Law, from and after the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, indemnify and hold harmless, and provide advancement of expenses to, each Indemnified Party in respect of acts or omissions in their capacity as a director or officer of the Company or its Subsidiaries or as an officer, director, employee, fiduciary or agent of another enterprise if the Indemnified Party was serving in such capacity at the request of the Company or any of its Subsidiaries, in any case occurring at or prior to the Effective Time, to the fullest extent permitted by applicable Law or provided under the articles of incorporation, bylaws, any indemnification agreements and any other governing documents of the Company and its Subsidiaries in effect on the date hereof. In the event of any threatened or pending Litigation to which an Indemnified Party is, has been or becomes a party or with respect to which an Indemnified Party is, has been or becomes otherwise involved (including as a witness), arising in whole or in part out of, or pertaining in whole or in part to, the fact that Parentthe 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 an officer, director, employee, fiduciary or agent of another enterprise (including any Litigation arising out of or pertaining to matters occurring or existing or alleged to have occurred or existed, or acts or omissions occurring or alleged to have occurred, at or prior to the Effective Time, or arising out of or pertaining to this Agreement and the transactions contemplated hereby), to the fullest extent permitted by applicable Law, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, advance fees, costs and expenses (including attorney’s fees and disbursements) incurred by each Indemnified Party in connection with and prior to the final disposition of such Litigations, such fees, costs and expenses (including attorney’s fees and disbursements) to be advanced within thirty (30) days of receipt by Parent from the Indemnified Party of a request therefor, provided that such Indemnified Party provides a written affirmation of such Indemnified Party’s good faith belief that he or she has met all applicable standards of conduct applicable to indemnification and an undertaking to repay such advance if it is ultimately determined by a final non-appealable order of a court of competent jurisdiction that such Indemnified Party is not entitled to indemnification under this Section 7.06(c) or otherwise.
(d) If Parent or the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person person, then, and in each such case, Parent shall cause case proper provision to shall be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes shall assume the obligations set forth in this Section 5.47.06.
(e) Notwithstanding anything herein to the contrary, if an Indemnified Party is or has been a party to or is or has been otherwise involved (including as a witness) in any Litigation (whether arising before, at or after the Effective Time) on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 7.06 shall continue in effect until the final disposition of such Litigation.
(f) The provisions of this Section 7.06 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnified Party, his or her heirs and his or her representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the articles of organization or bylaws, by Contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Popeyes Louisiana Kitchen, Inc.), Merger Agreement (Restaurant Brands International Inc.)
Indemnification, Exculpation and Insurance. (a) Each Parent Party acknowledges and Merger Sub agree agrees that nothing in this Section 5.8 is intended to limit any other rights that any current or former director or officer of the Company or any of its Subsidiaries (collectively, the “Indemnified Persons”) may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise. Each Parent Party further agrees, and shall cause the Surviving Company to take all action reasonably necessary to ensure, that all rights to indemnification, exculpation, exculpation and expense advancement of expenses and reimbursement existing in favor of the current or former directors and officers Indemnified Persons of the Company as provided in any indemnification agreements with such Indemnified Persons and in the Company Organizational Documents, employment agreements, or elsewhere Documents as in effect on the date of this Agreement for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, Time shall be assumed and performed by the Surviving Corporation Company (and Parent shall fully guarantee the performance and payment thereof by the Surviving Company) and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company such Indemnified Persons arising out of such acts or omissions, except as otherwise required by applicable Law. For the avoidance of doubt, Parent shall amend any applicable organizational documents of the Surviving Company as necessary in order to ensure that such indemnification and exculpation rights are assumed and performed by the Surviving Company.
(b) For six (6) years after Parent and the Effective Time, Parent shallSurviving Company will cause to be put in place, and Parent shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or fully prepay prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” insurance policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than with a claims reporting or discovery period of at least six years from the Effective Time (the “Tail Period”) from an insurance carrier with the same or better credit rating as the Company’s current policies of insurance carrier with respect to directors’ and officers’ liability insurance (“D&O Insurance”) in an amount and fiduciary liability insurance maintained by scope at least as favorable as the Company Company’s existing policies with respect to matters arising at matters, acts or omissions existing or occurring at, prior to to, or after the Effective Time; provided, except however, that in no event shall the Company may not commit or spend on such “tail” policies annual premiums in excess aggregate cost of the D&O Insurance exceed during the Tail Period 300% of the current aggregate annual premiums premium paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% purpose (which current aggregate annual premium is hereby represented and warranted by the Company to be as set forth in Section 5.8(b) of the Base AmountCompany Disclosure Letter); and provided, then further, that if the cost of such insurance coverage exceeds such amount, the Surviving Company shall purchase policies that provide obtain a policy with the maximum greatest coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of for a cost not exceeding such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderamount.
(c) In the event that Parent, Parent or the Surviving Corporation Company, or any of its their respective successors or assigns assigns, shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person Person, then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation Company (as applicable) assumes the obligations set forth in this Section 5.45.8.
(d) The provisions of this Section 5.8 shall survive consummation of the Mergers and are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her legal representatives.
Appears in 2 contracts
Samples: Merger Agreement (Parsley Energy, Inc.), Merger Agreement (Pioneer Natural Resources Co)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree agrees that all rights to indemnification, exculpation, and 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 and or officers of the Company (each, an “Indemnified Person”) acting in such capacities as provided in the Company’s Articles of Association and any indemnification or other agreements of the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring as in effect on the date of this Agreement (to the extent that copies have been made available to Parent prior to the date of this Agreement) (collectively “Existing Indemnification Obligations”) shall be assumed by the Surviving Company in the Merger, without further action, at the Effective Time, including in respect of and shall survive the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations in accordance with respect their terms; provided, that such obligations shall be subject to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by limitation imposed from time to time under applicable Law. Parent shall cause the Surviving Company to comply with the Existing Indemnification Obligations.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior Prior to the Effective Time, the Company or shall, and, if the Company is unable to, Parent (on behalf shall cause the Surviving Company as of the Surviving Corporation) shall purchase six (6) year prepaid Effective Time to, obtain and fully pay for, at no expense to the individual insureds thereunder, non-cancellable “tail” insurance policies on terms with claims periods of at least seven years from and conditions providing coverage retentions, limits and other material terms no less favorable than after the current policies of Effective Time from insurance carriers with the same or better claims-paying ability ratings as the Company’s insurance carriers with respect to directors’ and officers’ liability insurance policies and fiduciary liability insurance maintained policies in place immediately prior to the Effective Time (collectively, “D&O Insurance”) for the persons who are covered by the Company Company’s existing D&O Insurance, with terms, conditions, retentions and levels of coverage at least as favorable to the insured individuals as the Company’s existing D&O Insurance with respect to matters arising existing or occurring at or prior to the Effective TimeTime (including in connection with this Agreement or the transactions contemplated hereby); provided, except however, that the Company shall not pay, or the Surviving Company shall not be required to pay, as the case may not commit or spend on be, for such “tail” policies annual premiums extended reporting periods aggregate one-time premium costs in excess of three-hundred percent (300% %) of the annual premiums paid by amount per annum the Company paid in its last full fiscal year prior to year, which amount the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% Company hereby represents is as set forth in Section 5.9(b) of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderDisclosure Letter.
(c) In The provisions of this Section 5.9 shall survive consummation of the event that ParentMerger, shall be binding upon the successors and assigns of Parent and the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person Company and are intended to be for the benefit of, and shall not be the continuing enforceable by, each Indemnified Person, his or surviving corporation her heirs and his or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation assumes the obligations set forth in this Section 5.4her legal representatives.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (UNITED THERAPEUTICS Corp), Merger Agreement (SteadyMed Ltd.)
Indemnification, Exculpation and Insurance. (a) For a period of seven (7) years from the Effective Time (the “D&O Indemnification Period”), Parent and Merger Sub agree Group agrees that all rights to indemnification, exculpation, and 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 [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential. existing in favor of the current or former directors and or officers of the Group Companies (and each individual who serves or served as a director, officer, member, trustee, fiduciary or employee of another Person at the request of the Group Companies) (the “Company Indemnified Parties”) as provided in their respective governing or Organizational Documents and any indemnification or other similar agreements of the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect any of the Merger TransactionsCompany’s Subsidiaries, shall be assumed and performed by in each case as in effect on the Surviving Corporation and date of this Agreement (the “Indemnification Rights”), shall continue in full force and effect until the later of six years after in accordance with their terms (it being agreed that starting at the Effective Time or and during the D&O Indemnification Period such rights shall be mandatory rather than permissive), and Parent Group shall cause each of the Group Companies (including the Surviving Corporation) to perform their obligations thereunder at all times prior to the expiration of the applicable statute D&O Indemnification Period (and for the avoidance of limitations with respect to any such claims against directors or officers doubt, the Indemnification Rights of the Company arising out of such acts or omissions, except as otherwise required by applicable LawIndemnified Parties shall continue in full force and effect in accordance with their terms during the entire D&O Indemnification Period).
(b) For six Prior to the Closing Date, the Group Companies shall purchase “tail” directors’ and officers’ liability, “tail” E&O cyber and “tail” financial institution professional liability / crime insurance policies insuring the Company Indemnified Parties under the current (6or renewed) aforesaid insurance programs e maintained by the Group Companies which shall be effective commencing with the Closing Date and ending seven (7) years after thereafter with respect to the Effective Time, Parent shallD&O and financial institution professional liability / crime programs and three (3) years thereafter with respect to the E&O / cyber program, and which shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors afford coverage for actual or alleged acts or omissions occurring on or before at, prior to the Effective TimeClosing Date including with respect to the transactions contemplated by this Agreement (including the Merger), including in respect of the Merger Transactionseach case, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to such coverage and amount no less amounts at least as favorable than to such Persons as those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base AmountTail Insurance”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent Group shall cause not, and, following the Closing, shall not allow the Surviving Corporation to maintain such policies in full force and effect for their full termor any of its Subsidiaries to, and continue to honor amend, waive, modify or terminate the obligations thereunderTail Insurance.
(c) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person Person, then, and in each such case, Parent the Surviving Corporation shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes assume the obligations set forth in this Section 5.47.12.
(d) The provisions of this Section 7.12 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and representatives.
Appears in 2 contracts
Samples: Merger Agreement (Shift4 Payments, Inc.), Merger Agreement (Shift4 Payments, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent and Prior to the Merger Sub agree that all rights to indemnificationClosing, exculpation, and advancement of expenses existing in favor of the current or former directors and officers of the Company as provided shall use its reasonable best efforts to purchase a “tail” or “runoff” directors’ and officers’ liability insurance policy in the Company Organizational Documents, employment agreements, or elsewhere for respect of acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s directors’ and officers’ liability insurance policy and each person who becomes covered by the Company’s directors’ liability and fiduciary officers’ liability insurance policies policy prior to the consummation of the Merger on terms with respect to coverage coverage, deductibles and amount amounts no less favorable than those of such policies policy in effect on the date hereof. The provisions of this Agreement for the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms period following the Merger Closing and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect at a price not to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300exceed 250% of the annual premiums paid by amount per annum the Company paid in its last full fiscal year prior to the date hereof for of this Agreement, which the Company’s current policies Company represents and warrants has been disclosed to Parent prior to the date of directors’ and officers’ liability insurance and fiduciary liability insurance this Agreement (the “Base AmountCurrent Premium”), and if such premiums for such . If the Company or Parent obtains prepaid “tail” or “runoff” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time in accordance with respect to this Section 7.05(a), the procurement of such “tail” policiesSurviving Corporation shall, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to to, maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder. If the Company fails to purchase such “tail” or “runoff” policy prior to the Merger Closing, then either (i) Parent may purchase such “tail” or “runoff” policy on behalf of the Company or the Surviving Corporation or (ii) the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain a directors’ and officers’ liability insurance policy in respect of acts or ommisions occuring prior to the Effective Time covering each such person currently covered by the Company’s directors’ and officers’ liability insurance policy on terms with respect to coverage and amount no less favorable than those of such policy in effect as of the date of this Agreement for a period of six (6) years after the Effective Time; provided further, that in satisfying its obligation under this Section 7.05(a)(ii), neither Parent nor the Surviving Corporation shall be obligated to pay annual premiums in excess of 250% of the Current Premium and if such premiums for such insurance would at any time exceed 250% of the Current Premium, then Parent or the Surviving Corporation shall cause to be maintained policies of insurance that, in Parent or the Surviving Corporation’s good faith judgment, provide the maximum coverage available at an annual premium equal to 250% of the Current Premium.
(b) From and after the Effective Time, Parent shall cause the Surviving Corporation to fulfill and honor in all respects the obligations of the Company and its Subsidiaries pursuant to (i) each indemnification agreement in effect between the Company or any of its Subsidiaries and any 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 “Indemnified Party”) made available to Parent; and (ii) any indemnification provision and any exculpation provision set forth in the charter or bylaws of the Company as in effect on the date of this Agreement, in each case, to the fullest extent permitted under applicable Law. From the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs, the charter and bylaws of the Surviving Corporation shall contain, and Parent shall cause the charter and bylaws of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of each Indemnified Party than are set forth in the charter and bylaws of the Company as in effect on the date of this Agreement.
(c) In the event that Parent, If Parent or the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person person, then, and in each such case, Parent shall cause case proper provision to shall be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes shall assume the obligations set forth in this Section 5.47.05.
(d) Notwithstanding anything herein to the contrary, if an Indemnified Party is or has been a party to or is or has been otherwise involved (including as a witness) in any Litigation (whether arising before, at or after the Effective Time) on or prior to the sixth (6th) anniversary of the Effective Time, the provisions of the last sentence of Section 7.05(b) shall continue in effect with respect to such Indemnified Party until the final disposition of such Litigation.
(e) The provisions of this Section 7.05 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnified Party, his or her heirs and his or her representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the articles of organization or bylaws, by Contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Smith & Nephew PLC), Merger Agreement (Osiris Therapeutics, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent Each of the Company, Cinergy, Duke, Merger Sub A and Merger Sub agree that B agrees that, to the fullest extent permitted under applicable law, all rights to indemnification, exculpation, indemnification and advancement of expenses exculpation from liabilities for acts or omissions occurring at or prior to the Cinergy Effective Time now existing in favor of the current or former directors directors, officers, employees or fiduciaries under benefit plans currently indemnified of Cinergy and officers of its subsidiaries or Duke and its subsidiaries, as the Company case may be, as provided in their respective certificate or articles of incorporation, by-laws (or comparable organizational documents) or other agreements providing indemnification shall survive the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation Mergers and shall continue in full force and effect until the later of six years in accordance with their terms. In addition, from and after the Cinergy Effective Time Time, directors, officers, employees and fiduciaries under benefit plans currently indemnified of Cinergy or the expiration of the applicable statute of limitations with respect to any such claims against directors Duke or officers their respective subsidiaries who become directors, officers, employees or fiduciaries under benefit plans of the Company arising out will be entitled to the indemnity rights and protections afforded to directors, officers, employees and fiduciaries under benefit plans of such acts or omissions, except as otherwise required by applicable Lawthe Company.
(b) For six (6) years after the Effective Time, Parent shall, the Company shall maintain in effect the directors' and shall cause the Surviving Corporation to, maintain officers’ ' liability (and directors’ liability fiduciary) insurance policies currently maintained by Cinergy and fiduciary liability insurance in respect of acts, errors Duke covering acts or omissions occurring on or before prior to the Effective Time, including in Time with respect of the Merger Transactions, covering each such person to those persons who are currently covered by the Company’s Cinergy's and Duke's respective directors' and officers’ ' liability (and directors’ liability and fiduciary liability fiduciary) insurance policies on terms with respect to such coverage and amount in amounts no less favorable than those of such policies set forth in the relevant policy in effect on the date hereofof this Agreement. The provisions If such no less favorable insurance coverage cannot be maintained, the Company shall maintain the most advantageous policies of directors' and officers' insurance otherwise obtainable. In addition, each of Duke and Cinergy may purchase a six-year "tail" prepaid policy prior to the immediately preceding sentence shall be deemed Effective Time on terms and conditions no less advantageous to have the Cinergy Indemnified Parties and Duke Indemnified Parties, or any other person entitled to the benefit of Sections 5.08(a) and (b), as applicable, than the existing directors' and officers' liability (and fiduciary) insurance maintained by Duke or Cinergy, as the case may be, covering without limitation the transactions contemplated hereby. If such "tail" prepaid policy has been satisfied ifobtained by Duke or Cinergy, at or as the case may be, prior to the Effective Time, the Company shall, and shall cause Duke or Parent (on behalf of Cinergy, as the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentionscase may be, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to after the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies policy in full force and effect effect, for their its full term, and to continue to honor the their respective obligations thereunder.
(c) In From and after the event Cinergy Effective Time, each of the Company and the corporation surviving the Cinergy Merger (the "Cinergy Surviving Corporation") agrees that Parent, the Surviving Corporation it will jointly and severally indemnify and hold harmless each present director and officer of Cinergy or any of its subsidiaries (in each case, for acts or failures to act in such capacity), determined as of the date hereof, and any person who becomes such a director or officer between the date hereof and the Cinergy Effective Time (collectively, the "Cinergy Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of matters existing or occurring at or prior to the Cinergy Effective Time, whether asserted or claimed prior to, at or after the Cinergy Effective Time (including any matters arising in connection with the transactions contemplated by this Agreement), to the fullest extent permitted by applicable law (and the Company or the Cinergy Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under applicable law, provided that if required by applicable law the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification); and provided, further, that any determination as to whether a Cinergy Indemnified Person is entitled to indemnification or advancement of expenses hereunder pursuant to applicable law shall be made by independent counsel jointly selected by the Cinergy Surviving Corporation and such Cinergy Indemnified Person.
(d) From and after the Duke Effective Time, each of the Company and Duke Power LLC, as the successor to the corporation surviving the Duke Merger, agrees that it will jointly and severally indemnify and hold harmless each present director and officer of Duke or any of its subsidiaries (in each case, for acts or failures to act in such capacity), determined as of the date hereof, and any person who becomes such director or officer between the date hereof and the Duke Effective Time (collectively, the "Duke Indemnified Parties"), against any Costs incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of matters existing or occurring at or prior to the Duke Effective Time, whether asserted or claimed prior to, at or after the Duke Effective Time (including any matters arising in connection with the transactions contemplated by this Agreement), to the fullest extent permitted by applicable law (and the Company or Duke Power LLC shall also advance expenses as incurred to the fullest extent permitted under applicable law, provided that if required by applicable law the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification); and provided, further, that any determination as to whether a Duke Indemnified Person is entitled to indemnification or advancement of expenses hereunder pursuant to applicable law shall be made by independent counsel jointly selected by the Duke Power LLC and such Duke Indemnified Person.
(e) The obligations of the Company, the Cinergy Surviving Corporation and Duke Power LLC under this Section 5.08 shall not be terminated or modified by such parties in a manner so as to adversely affect any Cinergy Indemnified Party, Duke Indemnified Party, or any other person entitled to the benefit of Sections 5.08(a) and (b), as the case may be, to whom this Section 5.08 applies without the consent of the affected Cinergy Indemnified Party, Duke Indemnified Party, or such other person, as the case may be. If the Company, the Cinergy Surviving Corporation or Duke Power LLC or any of its respective successors or assigns shall (i) shall consolidate with or merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any Person individual, corporation or other entity, then, and in each such case, Parent proper provisions shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Company, the Cinergy Surviving Corporation assumes or Duke Power LLC, as the case may be, shall assume all of the obligations set forth in this Section 5.45.08.
(f) The provisions of Section 5.08 are (i) intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Duke Energy Corp), Merger Agreement (Cinergy Corp)
Indemnification, Exculpation and Insurance. (a) From and after the Effective Time, the Parent will fulfill and honor and will cause the Surviving Corporation to fulfill and honor in all respects the obligations of the Company pursuant to any indemnification agreements between the Company and any of its subsidiaries and their respective directors and officers (the "Indemnified Parties") existing prior to the date ------------------- hereof; Parent acknowledges that indemnity agreements are currently in force with each of the Company's directors and officers and agrees not to challenge the validity of such agreements. From and after the Effective Time, such obligations shall be the joint and several obligations of Parent and Merger Sub agree that all rights to indemnificationthe Surviving Corporation and, exculpationby executing this Agreement, Parent hereby assumes such obligations. The Certificate of Incorporation and advancement of expenses existing in favor Bylaws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and Bylaws of the Company, which provisions will not be amended, repealed or otherwise modified from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, immediately prior to the Effective Time, were directors, officers, employees or agents of the Company or its subsidiaries, unless such modification is required by law.
(b) Parent will to cause to be maintained for a period of not less than two (2) years from the Effective Time the Company's current or former directors' and officers' insurance and indemnification policy to the extent that it provides coverage for events occurring prior to the Effective Time (the "D&O Insurance") ------------- for all persons who are directors and officers of the Company on the date of this Agreement, so long as provided the annual premium therefor would not be in excess of 150% of the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring last annual premium paid prior to the Effective Timedate of this Agreement (the "Maximum Premium"). If the existing D&O Insurance expires, including is terminated or --------------- canceled during such two year period, Parent will use all reasonable efforts to cause to be obtained as much D&O Insurance as can be obtained for the remainder of such period for an annualized premium not in respect excess of the Maximum Premium, on terms and conditions no less advantageous than the existing D&O insurance. In lieu of maintaining the Company's current D&O insurance, Parent may elect to add the directors and officers of the Company on the date of this Agreement to its own insurance policy, provided that such election does not diminish the rights provided to such persons under the Company's existing D&O Insurance.
(c) This Section 6.6 will survive any termination of this Agreement and the consummation of the Merger Transactionsat the Effective Time is intended to benefit the Company, shall be assumed and performed by the Surviving Corporation and shall continue in full force the persons who are or were directors, officers, employees and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers agents of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring its subsidiaries on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, and will be binding on all successors and assigns of the Company Parent or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(cd) In the event that Parent, Parent or the Surviving Corporation or any of its their successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall not be the continuing or surviving corporation corporations or entity entities of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person thenmerger, then and in each such case, Parent proper provisions shall cause proper provision to be made so that the successor successors and assign assigns of the Parent or the Surviving Corporation assumes shall assume the obligations of the Parent or the Surviving Corporation, as the case may be, set forth in this Section 5.46.6.
(e) The provisions of this Section 6.6 are intended to be for the benefit of, and shall be enforceable by, each indemnified party and such party's heirs and representatives.
Appears in 2 contracts
Samples: Merger Agreement (Netframe Systems Inc), Merger Agreement (Micron Technology Inc)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all All rights to indemnification, exculpation, indemnification and advancement of expenses 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, officers and officers employees of the Company and its Subsidiaries (the "Indemnified Parties") as provided in the Company Organizational DocumentsCertificate or the Company By-laws (in each case, employment agreements, or elsewhere for acts or omissions occurring prior to as in effect on the Effective Time, including in respect of the Merger Transactions, date hereof) shall be assumed and performed by the Surviving Corporation Entity in the Merger, without further action, as of the Effective Time and shall survive the Merger and shall continue in full force and effect until in accordance with their terms. The Parent shall indemnify and hold harmless, and provide advancement of expenses to the later Indemnified Parties to the same extent such persons are indemnified or have the right to advancement of six years after the Effective Time or the expiration expenses as of the applicable statute of limitations with respect to any such claims against directors or officers of date hereof by the Company arising out of such acts or omissions, except as otherwise required by applicable Lawpursuant to the Company Certificate and the Company By-laws.
(b) For six (6) years after the Effective Time, Parent shall, shall maintain in effect the Company's current directors' and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary ' liability insurance in respect of acts, errors acts or omissions occurring on at or before prior to the Effective Time, (including for acts or omissions occurring in respect connection with the approval of this Agreement and the consummation of the Merger Transactions, transactions contemplated hereby) covering each such person the Indemnified Parties currently covered by the Company’s 's directors' and officers’ and directors’ liability and fiduciary ' liability insurance policy (a correct and complete copy of which has been heretofore made available to Parent), on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereof; provided, however, that Parent may substitute therefor policies on of Parent containing terms with respect to coverage and amount no less favorable than those of to such policies Indemnified Parties; provided further, however, that in effect on the date hereof. The provisions of the immediately preceding sentence satisfying its obligation under this Section 6.04(b) Parent shall not be deemed obligated to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual pay aggregate premiums in excess of 300% of the annual premiums amount paid by the Company in its last full fiscal year prior (which premiums are hereby represented and warranted by the Company to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”be approximately $2,500,000), it being understood and if agreed that Parent shall nevertheless be obligated to provide such premiums coverage as may be obtained for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderamount.
(c) In The covenants contained in this Section 6.04 are intended to be for the event that Parentbenefit of, and shall be enforceable by, each of the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person Indemnified Parties and their respective heirs and legal representatives, and shall not be the continuing deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to Law, contract or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation assumes the obligations set forth in this Section 5.4otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Unitedhealth Group Inc), Merger Agreement (Mid Atlantic Medical Services Inc)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub Purchaser agree that all rights to indemnification, exculpation, exculpation and advancement of expenses existing in favor of the current or former directors directors, officers and officers employees of the Company (each an “Indemnified Person”) as provided in the Company’s certificate of incorporation or bylaws or under any agreement filed as an exhibit to a Company Organizational DocumentsSEC Report filed at least two (2) Business Days prior to the date hereof or listed on Section 3.17 of the Disclosure Letter, employment agreementsin each case, or elsewhere as in effect on the date hereof, for acts or omissions occurring prior to or at the Effective Time, including in respect of the Merger Transactions, Time shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of for a period not less than six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law(6) years.
(b) For From and after the Effective Time, Parent will cause to be maintained in effect for a period of six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors acts or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to or at the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the Company’s current policies of directors’ and officers’ liability insurance covering each Person currently covered by the Company’s directors’ and fiduciary officers’ liability insurance maintained by the Company with respect to matters arising at policy for acts or omissions occurring prior to the Effective Time; provided that Parent may (i) substitute therefor policies of an insurance company the material terms of which, except including coverage and amount, are no less favorable in any material respect to such directors and officers than the Company’s existing policies as of the date hereof or (ii) request that the Company may not commit obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective Time); and provided further that in no event shall Parent or spend on such “tail” policies the Company be required to pay annual premiums for insurance under this Section 5.06(b) in excess of 300% of the amount of the annual premiums paid by the Company in its last full fiscal year prior 2017 for such purpose, it being understood that Parent shall nevertheless be obligated to provide as much coverage as may be obtained for such 300% amount. Prior to the date hereof for Effective Time, notwithstanding anything to the Company’s current policies of contrary in this Agreement, the Company may purchase a six-year “tail” prepaid policy on the directors’ and officers’ liability insurance policies on terms and fiduciary conditions no less advantageous than the directors’ and officers’ liability insurance (policies. In the event that the Company purchases such a “Base Amount”)tail” policy prior to the Effective Time, Parent and if such premiums for the Surviving Corporation shall maintain such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the their respective obligations thereunder, in lieu of all other obligations of Parent and the Surviving Corporation under the first sentence of this Section 5.06(b) for so long as such “tail” policy shall be maintained in full force and effect.
(c) Notwithstanding anything herein to the contrary, if any Indemnified Person notifies the Surviving Corporation on or prior to the sixth anniversary of the Effective Time that a claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) has been made against such Indemnified Person, the provisions of this Section 5.06 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(d) This Section 5.06 shall survive the acceptance of Company Shares for payment pursuant to the Offer and the consummation of the Merger and is intended to benefit, and shall be enforceable by, the Indemnified Persons and their respective heirs and legal representatives.
(e) In the event that Parent, the Surviving Corporation or Parent or any of its their respective successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall not be the continuing or surviving corporation or entity Person of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person Person, then, and in each such case, Parent shall cause proper provision to shall be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.45.06.
Appears in 2 contracts
Samples: Merger Agreement (Roche Holding LTD), Merger Agreement (Ignyta, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all rights to indemnification, exculpation, and advancement of expenses existing in favor of the current or former directors and officers of the Company as provided in the Company Organizational Documents, employment agreements, Documents or elsewhere in indemnification agreements with the directors and officers of the Company in the form attached to the Company’s most recent annual report on Form 10-K for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at At or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) six-year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300250% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300250% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300250% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, term and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation assumes the obligations set forth in this Section 5.4section 5.5.
Appears in 2 contracts
Samples: Merger Agreement (Carbon Black, Inc.), Merger Agreement (Vmware, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all All rights to indemnification, exculpation, indemnification and advancement of expenses 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 and officers of the Company and its Subsidiaries (the "Indemnified Parties") as provided in the Company Organizational DocumentsCharter or the Company Bylaws (in each case, employment agreements, or elsewhere for acts or omissions occurring prior to as in effect on the Effective Time, including in respect of the Merger Transactions, date hereof) shall be assumed and performed by the Surviving Corporation in the Merger, without further action, as of the Effective Time and shall survive the Merger and shall continue in full force and effect until the later of in accordance with their terms for six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable LawTime.
(b) For six (6) years after the Effective Time, Parent shall, shall maintain in effect the Company's current directors' and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary ' liability insurance in respect of acts, errors acts or omissions occurring on at or before prior to the Effective Time, Time (including for acts or omissions occurring in respect connection with the approval of this Agreement and the consummation of the Merger Transactionstransactions contemplated hereby), covering each such person the Indemnified Parties currently covered by the Company’s 's directors' and officers’ and directors’ liability and fiduciary ' liability insurance policy (a correct and complete copy of which has been heretofore made available to Parent), on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereof; provided, however, that Parent may substitute therefor a tail policy or policies on of Parent containing terms with respect to coverage and amount no less favorable than those of to such policies Indemnified Parties; provided, further, however, that in effect on the date hereof. The provisions of the immediately preceding sentence satisfying its obligation under this Section 6.04(b) Parent shall not be deemed obligated to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual pay aggregate premiums in excess of 300250% of the annual premiums amount paid by the Company in its last full fiscal year prior (which premiums are hereby represented and warranted by the Company to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”be approximately $465,000), it being understood and if agreed that Parent shall nevertheless be obligated to provide such premiums coverage as may be obtained for such “tail” policies would exceed 300250% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderamount.
(c) In The covenants contained in this Section 6.04 are intended to be for the event that Parentbenefit of, and shall be enforceable by, each of the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person Indemnified Parties and their respective heirs and legal representatives, and shall not be the continuing deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to Law, contract or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation assumes the obligations set forth in this Section 5.4otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Brookdale Senior Living Inc.), Merger Agreement (American Retirement Corp)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree UTC agrees that all rights to indemnificationindemnification and exculpation from liabilities, exculpation, and including advancement of expenses expenses, for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors and or officers of Raytheon (the Company “D&O Indemnified Parties”) as provided in the Company Organizational DocumentsCertificate of Incorporation of Raytheon, employment agreementsthe Bylaws of Raytheon or any indemnification contract between such directors or officers and Raytheon (in each case, or elsewhere for as in effect on, and, in the case of any indemnification contracts, to the extent made available to UTC prior to, the date of this Agreement) shall survive the Merger and shall continue in full force and effect. For a period of six (6) years from the Effective Time, the Surviving Corporation shall, and UTC shall cause the Surviving Corporation to, maintain in effect the exculpation, indemnification and advancement of expenses equivalent to the provisions of the Certificate of Incorporation of Raytheon and the Bylaws of Raytheon as in effect immediately prior to the Effective Time with respect to acts or omissions occurring prior to the Effective TimeTime and shall not amend, including repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any D&O Indemnified Parties; provided that all rights to indemnification in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and any claim made for indemnification within such period shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out disposition of such acts action or omissions, except as otherwise required by applicable Law.
(b) For six (6) years resolution of such claim. From and after the Effective Time, Parent shallUTC shall guarantee and stand surety for, and shall cause the Surviving Corporation to honor, in accordance with their respective terms, each of the covenants contained in this Section 6.4.
(b) Prior to the Effective Time, Raytheon shall or, if Raytheon is unable to, maintain UTC shall cause the Surviving Corporation as of or after the Effective Time to, purchase a six (6)-year prepaid “tail” policy, with terms, conditions, retentions and limits of liability that are no less favorable than the coverage provided under Raytheon’s existing policies of directors’ and officers’ and directors’ liability insurance and fiduciary liability insurance in insurance, with respect of acts, errors or omissions occurring to matters arising on or before the Effective TimeTime (including in connection with this Agreement and the transactions or actions contemplated by this Agreement), including and UTC shall cause such policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Surviving Corporation, and no other party shall have any further obligation to purchase or pay for insurance hereunder; provided that Raytheon shall not pay, and the Surviving Corporation shall not be required to pay, in excess of 300% of the last annual premium paid by Raytheon prior to the date of this Agreement in respect of such “tail” policy. If Raytheon or the Merger Transactions, covering each Surviving Corporation for any reason fail to obtain such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability “tail” insurance policies on terms with respect to coverage and amount no less favorable than those prior to, as of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to after the Effective Time, the Company or Parent (on behalf UTC shall, for a period of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentionsyears from the Effective Time, limits and other material terms no less favorable than cause the Surviving Corporation to maintain in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company Raytheon with respect to matters arising at on or prior to before the Effective Time; provided that, after the Effective Time, except that the Company may UTC shall not commit or spend on such “tail” policies be required to pay annual premiums in excess of 300% of the last annual premiums premium paid by the Company in its last full fiscal year Raytheon prior to the date hereof for of this Agreement in respect of the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”)coverage required to be obtained pursuant hereto, and if but in such premiums case shall purchase as much coverage as reasonably practicable for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderamount.
(c) The covenants contained in this Section 6.4 are intended to be for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties and their respective heirs and shall not be deemed exclusive of any other rights to which any such person is entitled, whether pursuant to Applicable Law, contract or otherwise.
(d) In the event that Parent, UTC or the Surviving Corporation or any of its their respective successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person person, then, and in each such case, Parent shall cause proper provision to shall be made so that the successor and assign successors or assigns of Parent UTC or the Surviving Corporation assumes Corporation, as the case may be, shall assume the obligations set forth in this Section 5.46.4.
Appears in 2 contracts
Samples: Merger Agreement (Raytheon Co/), Merger Agreement (United Technologies Corp /De/)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all All rights to indemnification, exculpation, indemnification and exculpation from liability 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 the current or former directors and officers of the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out and its subsidiaries (such persons, "Indemnified Persons"), as provided in their respective articles of incorporation or by-laws (or comparable organizational documents) and any existing indemnification agreements or arrangements of the Company or any of its subsidiaries shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any such acts or omissionsIndemnified Persons. The parties agree that the Surviving Corporation shall maintain, except as otherwise required by applicable Law.
(b) For for a period of six (6) years after from the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance run-off policy (including any excess limits coverage purchased in respect of acts, errors or omissions occurring on or before connection therewith) that the Company contemplates purchasing prior to the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by Time under the Company’s 's current directors' and officers’ ' insurance and directors’ liability and fiduciary liability insurance policies on terms with respect indemnification policy (the "D&O Insurance") to provide coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, for events occurring at or prior to the Effective Time, Time for all Indemnified Persons (the "Run-Off D&O Policy"). The Company or Parent covenants and agrees that the total premium for the Run-Off D&O Policy (on behalf including any excess limits coverage purchased in connection therewith) will not exceed the sum of (x) 250% of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company last annual premium payable with respect to matters arising at or the D&O Insurance prior to the Effective Timedate of this Agreement, except that which the Company may not commit or spend on such “tail” policies annual premiums in excess represents and warrants was $190,000, and (y) the amount of 300% of any pro rata return premium with respect to the annual premiums paid D&O Insurance received by the Company in its last full fiscal year prior to connection with the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% purchase of the Base AmountRun-Off D&O Policy (such sum, then the Company shall purchase policies "Maximum Premium"); provided, however, that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation may, in lieu of maintaining the Run-Off D&O Policy as provided above, cause comparable coverage to maintain be provided under any policy issued by a reputable insurance company, so long as the material terms thereof, including coverage and amount, are no less favorable to the Indemnified Persons than the existing D&O Insurance. If the Company is unable to obtain the Run-Off D&O Policy or the Run-Off D&O Policy expires, is terminated or is canceled during such policies six-year period, the Surviving Corporation shall cause to be obtained as much directors' and officers' insurance covering the Indemnified Persons as can be obtained for the remainder of such period for an aggregate premium not in full force and effect for their full term, and continue to honor excess of the obligations thereunderMaximum Premium.
(cb) In The parties agree that the provisions of this Section 5.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnified Person and each Indemnified Person's heirs and representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise. The parties agree that in the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person person, then, and in each such case, Parent shall cause proper provision to shall be made by such person so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes assume the obligations of the parties and the Surviving Corporation set forth in this Section 5.45.
Appears in 2 contracts
Samples: Merger Agreement (Chemfirst Inc), Merger Agreement (Dupont E I De Nemours & Co)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all rights to indemnification, exculpation, and advancement For a period of expenses existing in favor of the current or former directors and officers of the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after the Effective TimeClosing, Parent shallPurchaser will not, and shall cause will not permit the Surviving Corporation Company to, maintain officers’ amend, repeal or modify any provision in the Company’s organizational and governing documents relating to the exculpation, indemnification or advancement of expenses applicable to the current (as of immediately prior to the Closing Date) and former officers and directors of the Company and the Company Subsidiaries (each, as previously identified by the Company to Purchaser, an “D&O Indemnified Person”) in a manner that would adversely affect the rights of such officers and directors, except as required by applicable Law, it being the intent of the parties that the current officers and directors of the Company and the Company Subsidiaries will continue to be entitled to such exculpation, indemnification and advancement of expenses to the full extent currently provided in the Company’s organizational and governing documents.
(b) As of the date of this Agreement, the Company has obtained and fully paid for irrevocable “tail” insurance policies (“Tail Insurance”) naming the D&O Indemnified Persons as direct beneficiaries with a claims period of at least six (6) years from the Closing Date (the “Tail Period”) from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by an amount and scope at least as favorable as the Company’s officers’ and directors’ liability and fiduciary liability insurance existing policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, matters existing or occurring at or prior to the Effective TimeClosing Date. After the Closing, Purchaser will not, or will cause the Company not to, cancel or Parent (on behalf of change such Tail Insurance coverage during the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base AmountTail Period. The Company shall in good faith cooperate with Parent prior provide sufficient evidence to Purchaser that such Tail Insurance has been bound no later than the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderClosing.
(c) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties of the assets of the Company are sold, whether in one transaction or a series of transactions, then Purchaser and assets to any Person thenthe Company will, and in each such case, Parent shall cause proper provision to be made so ensure that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Company assume the obligations set forth in this Section 5.47.2. The provisions of this Section 7.2 will apply to all of the successors and assigns of the Company.
(d) The provisions of this Section 7.2 are intended for the benefit of, and will be enforceable by (as express third-party beneficiaries), each D&O Indemnified Person and his or her heirs and representatives, successors and assigns and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have had by Contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Worthington Industries Inc)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all rights to indemnification, exculpation, and advancement For a period of expenses existing in favor of the current or former directors and officers of the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years from and after the Effective Time, the Surviving Corporation shall (and the Parent shall, and shall will cause the Surviving Corporation to, ) either maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company or the Company Subsidiaries or provide substitute policies for the Company and the Company Subsidiaries and its and their respective current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company or the Company Subsidiaries, in either case, with terms (including with respect to matters coverage, limits, conditions, retentions and amounts) that are substantially equivalent to and in any event not less favorable, in the aggregate, than those of the Company’s directors’ and officers’ liability insurance and fiduciary liability insurance coverage in effect on the date of this Agreement with respect to claims arising from facts or events that occurred at or prior to before the Effective TimeTime (with insurance carriers having at least the same or better rating as the Company’s current insurance carrier for such insurance policies), except that in no event shall the Company may not commit or spend on Surviving Corporation be required to pay with respect to such “tail” insurance policies annual premiums in excess of 300% of the annual premiums premium most recently paid by the Company in its last full fiscal year prior to the date hereof of this Agreement, which amount is set forth in Section 6.05(a) of the Company Disclosure Letter (the “Maximum Amount”), and if the Surviving Corporation is unable to obtain the insurance required by this Section 6.05(a) it shall (and the Parent will cause the Surviving Corporation to) obtain a policy with the greatest coverage available for a cost not exceeding the CompanyMaximum Amount. In lieu of such insurance, prior to the Closing Date the Company may, subject to Parent’s current policies of prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), purchase “tail” directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail insurance to provide limits not less than the maximum existing coverage available at an annual premium equal and to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior have other terms not less favorable to the Effective Time insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred at or before the Effective Time; provided, that, in no event shall the annual cost of any such tail insurance exceed the Maximum Amount; provided, further, that the Company’s procurement of such “tail” policies, subject policy in accordance with this sentence shall be deemed to such policy being fully prepaid, including with respect satisfy in full the Surviving Corporation’s obligations pursuant to this Section 6.05(a). The Surviving Corporation shall (and the selection of the broker, available policy price and coverage options. Parent shall will cause the Surviving Corporation to to) maintain such policies in full force and effect in accordance with the terms of this Agreement.
(b) For a period of six (6) years from and 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 or officers of the Company and the Company Subsidiaries as provided in their respective certificates of incorporation or bylaws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of the Company Subsidiaries, in each case as in effect on the date of this Agreement and the Closing Date, shall continue in full termforce and effect in accordance with their terms (it being agreed that 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 and continue its Subsidiaries to honor contain provisions with respect to indemnification, advancement of expenses and exculpation that are no less favorable to the obligations thereundercurrent or former directors, officers or employees of the Company and the Company Subsidiaries than those set forth in the Company’s Certificate of Incorporation and Bylaws and the Company’s Subsidiaries’ equivalent organizational and governing documents as of the date of this Agreement, which provisions thereafter until the end of the Indemnity Period shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any current or former directors, officers or employees of the Company and the Company Subsidiaries. Without limiting the foregoing, during the Indemnity Period, the Surviving 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 the Company Subsidiaries or who was prior to or is as of the Closing Date, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of the Company Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including with respect to matters existing or occurring at or prior to the Effective Time (including this Agreement and the Merger and the other transactions and actions contemplated by this Agreement)), arising out of or pertaining to the fact that the Company Indemnified Party is or was a director or officer of the Company or any Company Subsidiary or is or was serving at the request of the Company or any Company Subsidiary as a director or officer of another Person 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 claim, action, suit or proceeding, (x) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit or proceeding from the Surviving Corporation within twenty (20) Business Days of receipt by the Surviving 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 the DGCL or the Surviving Corporation’s certificate of incorporation or bylaws (or comparable organizational documents) or any such indemnification agreement or similar 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 Corporation and such Company Indemnified Party shall cooperate with each other in the defense of any such matter.
(c) The provisions of this Section 6.05 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. Unless required by applicable Law, this Section 6.05 may not be amended, altered or repealed after the Effective Time in such a manner as to adversely affect the rights of any Company Indemnified Parties or any of their successors, assigns or heirs without the prior written consent of the affected Company Indemnified Parties.
(d) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Corporation and the Company Subsidiaries under this Section 6.05.
(e) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person Person, then, and in each such case, Parent the Surviving Corporation shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes assume the obligations set forth in this Section 5.46.05.
(f) The provisions of this Section 6.05 are intended to be for the benefit of, and will be enforceable by, any of the current or former directors or officers of the Company and the Company Subsidiaries, his or her heirs and his or her representatives.
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Indemnification, Exculpation and Insurance. (a) With effect from the Acceptance Time, Parent and Merger Sub the Company (or its successor) agree to refrain from making and enforcing any claim against, to waive any claim against, and to release and discharge from any claim, and to procure that their respective Subsidiaries refrain from making and enforcing any claim against, waive any claim against, and release and discharge from any claim, each current or former director and officer of the Company and each current or former director representing the Company in its Subsidiaries, for damages any of them has or may have based on directors’ or officers’ liability arising out of any matter, cause or event occurring on or before the Acceptance Time; provided, that the foregoing shall not apply in connection with any fraud, willful acts or omissions of a director or officer, as the case may be.
(b) Parent agrees that all rights to indemnification, exculpation, and advancement indemnification existing as of expenses existing the date hereof in favor of the current or former directors and officers of the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere Articles and the Contracts with such directors and officers of the Company as provided to Parent and in effect on the date of this Agreement for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, Acceptance Time shall be assumed and performed by the Surviving Corporation Company (or its successor) and its Subsidiaries and shall continue in full force and effect until the later for a period of six years after the Effective Acceptance Time or the expiration of the applicable statute of limitations with respect to any such claims against such directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(bc) For a period of six (6) years after the Effective Acceptance Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance to be maintained in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by effect the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance covering each Person currently covered by the Company’s directors’ and fiduciary officers’ liability insurance maintained by the Company with respect policy (a correct and complete copy of which has been heretofore made available to matters arising at Parent) for acts or omissions occurring prior to the Effective Acceptance Time; provided, except that Parent may (i) substitute therefor policies of an insurance company the terms of which, including coverage and amount, are no less favorable in any material respect to such directors and officers than the Company’s existing policies as of the date hereof or (ii) request that the Company may not commit obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Acceptance Time); and provided, further, that in no event shall Parent or spend on such “tail” policies the Company be required to pay annual premiums for insurance under this Section 4.9(c) in excess of 300% of the most recent annual premiums paid by the Company for such purpose (which annual premiums are hereby represented and warranted by the Company to be as set forth in its last full fiscal year prior Section 4.9(c) of the Company Disclosure Letter), it being understood that Parent shall nevertheless be obligated to provide as much coverage as may be obtained for such 300% amount.
(d) Following the Acceptance Time, subject to the date hereof for occurrence of any fraud, willful acts or omissions by such current or former director or officer of the Company, Parent shall, or shall cause its respective Subsidiaries (including the Company (or its successor) and the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then Subsidiaries) holding Shares in the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall or shares in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation or any of its successors Subsidiaries to, grant full discharge to each current or assigns shall (i) consolidate with former director and officer of the Company and each current or merge into any other Person former director representing the Company in its Subsidiaries at the next extraordinary and shall not be the continuing or surviving corporation or entity annual general meeting of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign shareholders for their term of Parent or the Surviving Corporation assumes the obligations set forth in this Section 5.4office.
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Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree Purchaser agrees that all rights to indemnification, exculpation, and advancement of expenses existing in favor of the current or former directors Indemnitees to indemnification and officers of the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere exculpation from liabilities for acts or omissions occurring on or prior to the Effective Time, including Closing Date as provided in respect the Governing Documents of the Merger TransactionsCompanies as now in effect, and any indemnification agreements or arrangements of the Companies (which indemnification agreements or arrangements are listed in Section 8.6 of the Disclosure Schedule) shall be assumed and performed by survive the Surviving Corporation Closing Date and shall continue in full force and effect until in accordance with their terms. Such rights shall not be amended, or otherwise modified in any manner that would adversely affect the later of six years after the Effective Time or the expiration rights of the applicable statute of limitations with respect to any Indemnitees, unless such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise modification is required by applicable Law.
(b) For Purchaser, from and after the Closing Date, shall cause the respective certificate of incorporation, by-laws, limited liability company agreement and partnership agreement, as applicable, of the Companies (including the certificate of incorporation and by-laws of Holdings) to contain provisions no less favorable to the Indemnitees with respect to limitation of certain liabilities of directors, officers, employees and agents and indemnification than are set forth as of the date of this Agreement in the Governing Documents of the Companies (including the certificate of incorporation and by-laws of Holdings).
(c) The Companies shall obtain (at their sole cost and expense, which shall be reflected as Transaction Expense) prior to or upon the Closing, and for the six (6) years year period commencing immediately after the Effective TimeClosing shall maintain in effect, Parent shall, a “tail” directors’ and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability errors and fiduciary omissions liability insurance in respect of acts, errors policies with a reputable insurance company covering acts or omissions relating to the Companies occurring on or before prior to the Effective Time, including in Closing Date with respect to those directors and officers of the Merger Transactions, covering each such person Companies who are currently covered by the Company’s directors’ and officers’ and directors’ liability errors and fiduciary omissions liability insurance policies policies, on terms with respect to such coverage and amount amounts no less favorable to the Companies’ directors and officers currently covered by such insurance than those of such policies in effect on the date hereof. .
(d) The provisions of this Section 8.6 (i) are intended to be for the immediately preceding sentence benefit of, and shall be deemed to have been satisfied ifenforceable by, at each Indemnitee, his or prior to the Effective Time, the Company her heirs and his or Parent her representatives; and (on behalf of the Surviving Corporationii) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums are in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”)addition to, and if not in substitution for, any other rights to indemnification or contribution that any such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base AmountPerson may have by Contract or otherwise. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation Purchaser or any of its successors or assigns shall (iA) consolidate consolidates with or merge merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger merger; or (iiB) transfer transfers or conveys all or substantially all of its properties and or assets to any Person Person, then, and in each such case, Parent shall cause proper provision to shall be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Purchaser shall assume all of the obligations thereof set forth in this Section 5.48.6.
(e) The obligations of Purchaser under this Section 8.6 shall not be terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 8.6 applies without the written consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 8.6 applies shall be third party beneficiaries of this Section 8.6).
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Indemnification, Exculpation and Insurance. (a) Parent The Merger Agreement provides for certain indemnification and Merger Sub agree that insurance rights in favor of RC2’s current and former directors or officers, who we refer to as “indemnified persons.” Specifically, all rights to indemnification, exculpation, indemnification advance and advancement reimbursement of expenses existing in favor provided to the indemnified persons, under RC2’s certificate of the current incorporation, bylaws or former directors and officers of the Company as provided in the Company Organizational Documentsother agreements disclosed to Parent, employment agreements, or elsewhere for with respect to acts or omissions occurring prior arising on or before to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall will continue in full force and effect until following the later Effective Time. For a period of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after from the Effective Time, Parent shall, and shall cause the Surviving Corporation to, agreed to maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company RC2 with respect to matters acts or omissions arising at on or prior to before the Effective Time, except that . Parent may substitute policies of substantially equivalent coverage containing terms no less favorable to the Company may indemnified persons. Parent is not commit or spend on such “tail” policies required after the Effective Time to pay annual premiums in excess of 300250% of the last annual premiums paid by premium for RC2’s existing policies, but in such case will purchase as much coverage as may be purchased for such amount. RC2 may purchase, prior to Purchaser’s acceptance for payment of shares pursuant to and subject to the Company in its last full fiscal year conditions of the Offer, or Parent may purchase or cause RC2 to purchase prior to the date hereof for Effective Time a six-year prepaid “tail” policy on terms and conditions providing substantially equivalent benefits as the Company’s current policies of RC2 with respect to acts or omissions occurring at or before the Effective Time (covering without limitation the transactions contemplated by the Merger Agreement). The cost of any such “tail” policy purchased by RC2 will not exceed 250% of the last annual premium paid by RC2. If such a “tail” policy is obtained, Parent will maintain the policy for its full term and will have no further obligations with respect to directors’ and officers’ liability insurance and fiduciary liability insurance (under the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base AmountMerger Agreement. The Company shall in good faith cooperate with If Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation merges into or consolidates with another entity of such consolidation and is not the surviving corporation or merger or (ii) transfer all or sells substantially all its properties and assets to any Person thenassets, and in each such case, Parent shall cause proper provision to will be made so that the successor and assign successors or assigns of Parent or the Surviving Corporation assumes surviving corporation assume the insurance and indemnification obligations set forth described above. The indemnified persons are third party beneficiaries of, and entitled to rely upon, these provisions of the Merger Agreement. Exemption from Liability under Section 16(b). RC2 has agreed to take all reasonable steps to cause any dispositions of RC2 equity securities in this connection with the Merger Agreement by each director or officer of RC2 subject to Section 5.416 of the Exchange Act to be exempt under Rule 16b-3 promulgated under the Exchange Act. Approval of Compensation Arrangements. RC2 has agreed to take all actions necessary prior to the Expiration Date in order (1) to cause the adoption, approval, amendment or modification of each certain employment arrangements, including any employment related agreement described in Section 11 — “The Merger Agreement; Other Agreements — New Employment Agreements and Other Employment-Related Agreements” to which it is a party, to be approved as an employment compensation, severance or other employee benefit arrangement solely by independent directors of RC2 in accordance with the requirements of Rule 14d-10(d)(2) under the Exchange Act and the instructions thereto and (2) to make the “safe harbor” provided pursuant to Rule 14d-10(d)(2) otherwise applicable thereto as a result of the taking prior to the Expiration Date of all necessary actions by RC2’s board of directors, the Compensation Committee of such board or its “independent directors” as defined by Rule 4200(a)(15) of the NASDAQ Marketplace Rules. 35 Table of Contents Third Party Standstill Agreements. RC2 has agreed during the period from the date of the Merger Agreement through the Effective Time not to terminate or amend any standstill agreement between RC2 and third parties and to enforce such agreements to the fullest extent permitted under applicable law. However, from the date of the Merger Agreement until the No-Shop Period Start Date, RC2 may grant waivers under standstill agreements solely to the extent necessary to permit counterparties to make non-public submissions of Acquisition Proposals prior to the No-Shop Period Start Date. In addition, from the date of the Merger Agreement until Purchaser’s acceptance for payment of shares pursuant to and subject to the conditions of the Offer, RC2 may grant waivers under standstill agreements if the board of directors of RC2, after consulting with RC2’s outside legal counsel, determines in good faith that not granting such a waiver would be reasonably likely to be inconsistent with the directors’ fiduciary duties to RC2’s stockholders under applicable law. RC2 shall provide written notice to Parent of the waiver or release of any standstill by RC2. RC2 shall not, and shall not permit any of its representatives to, enter into any confidentiality agreement subsequent to the date of the Merger Agreement which does not expressly permit, or which contains any provision that adversely affects the rights of the Company under such confidentiality agreement upon, compliance by RC2 with any provision of the Merger Agreement.
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Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree The Buyer agrees that all rights to indemnification, exculpation, and advancement of expenses indemnification existing in favor of the current or former managers, directors and officers of the Company or any of its Subsidiaries as provided in the Company’s or its Subsidiaries’ limited liability company agreement (including the Company Organizational Operating Agreement), certificate of incorporation or bylaws (or comparable governing documents) (collectively, “Governing Documents, employment agreements, ”) as in effect on the date of this Agreement or elsewhere in any indemnification agreement listed in Section 7.9 of the Disclosure Schedules as in effect on the date of this Agreement for acts or omissions occurring on or prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and Closing Date shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against such managers, directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law. From the Closing Date through the sixth anniversary of the Closing Date, the Buyer shall cause the Governing Documents to contain provisions applicable to the current and former managers, directors and officers of the Company and its Subsidiaries as of the Closing Date no less favorable with respect to indemnification, advancement of expenses and exculpation than are presently set forth in the Governing Documents.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior Prior to the Effective TimeClosing Date, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of a directors’ and officers’ liability insurance “tail policy” for the Company and fiduciary liability insurance maintained its Subsidiaries and their current and former managers, directors, officers and employees who are currently covered by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance coverage currently maintained by the Company in a form reasonably acceptable to Buyer that shall provide such managers, directors, officers and fiduciary employees with coverage for six years following the Closing Date of not less than the existing coverage and have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance (coverage currently maintained by the “Base Amount”)Company. Following the Closing Date, and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company Buyer shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to maintain such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full termeffect, and continue to honor the obligations thereunder. The cost of such “tail policy” shall be paid by the Company and shall be deemed a Third Party Expense.
(c) In the event that Parentthe Buyer, the Surviving Corporation Company or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person Person, then, and in each such case, Parent the Buyer shall cause proper provision to be made so that the successor and assign of Parent the Buyer or the Surviving Corporation Company assumes the obligations set forth in this Section.
(d) The rights of the indemnified Persons under this Section 5.4shall be in addition to (and not in limitation of) any rights such Persons may have under the Governing Documents or under any applicable Contracts or Laws.
(e) The provisions of this Section shall survive the consummation of the Acquisition and the other transactions contemplated by this Agreement and are intended to be for the benefit of, and shall be enforceable by, each indemnified party, his or her heirs and his or her legal representatives.
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Indemnification, Exculpation and Insurance. (a) Parent From and Merger Sub agree that all rights to indemnification, exculpation, and advancement of expenses existing in favor of the current or former directors and officers of the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and the Surviving Corporation shall, indemnify and hold harmless, to the fullest extent permitted under applicable Law, the individuals who on or prior to the Effective Time were directors’ liability , officers or employees of the Company or any of its Subsidiaries (collectively, the "INDEMNITEES") with respect to all acts or omissions by them in their capacities as such or taken at the request of the Company or any of its Subsidiaries at any time prior to the Effective Time. Parent agrees that, and fiduciary liability insurance in respect shall cause the Surviving Corporation to assume, all rights of acts, errors the Indemnitees to indemnification and exculpation from liabilities for acts or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, Time as provided in the respective Articles of Incorporation or Bylaws (or comparable organizational documents) of the Company or Parent (on behalf any of its Subsidiaries as now in effect, and any indemnification agreements or arrangements of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies Company or any of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by its Subsidiaries set forth in Section 6.05 of the Company Disclosure Schedule shall survive the Merger and shall continue in full force and effect in accordance with their terms. For a period of not less than six years from the Effective Time, such rights shall not be amended, or otherwise modified in any manner that would adversely affect the rights of the Indemnitees with respect to matters arising at indemnification and exculpation from liabilities for acts or omissions occurring prior to the Effective Time, except unless such modification is required by Law. In addition, the Surviving Corporation shall pay any expenses of any Indemnitee under this Section 6.05 as incurred to the fullest extent permitted under applicable Law, provided that the Company may not commit or spend on person to whom expenses are advanced provides an undertaking to repay such “tail” policies annual premiums in excess advances to the extent required by applicable Law.
(b) Parent, from and after the Effective Time, shall cause (i) the Articles of 300% Incorporation and Bylaws of the annual premiums paid Surviving Corporation to contain provisions no less favorable to the Indemnitees with respect to limitation of certain liabilities of directors, officers, employees and agents and indemnification than are set forth as of the date of this Agreement in the Articles of Incorporation and Bylaws of the Company and (ii) the Articles of Incorporation and Bylaws (or similar organizational documents) of each Subsidiary of the Surviving Corporation to contain the current provisions regarding indemnification of directors, officers, employees which provisions in each case shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees.
(c) The Indemnitee shall have the right (but not the obligation) to control the defense of, including the investigation of, any litigation, claim or proceeding (each, a "CLAIM") relating to any acts or omissions covered under this Section 6.05 with counsel selected by the Indemnitee; provided, however, that (i) the Surviving Corporation shall be permitted to participate in the defense of such Claim at its own expense and (ii) the Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not be unreasonably withheld or delayed.
(d) In the event any Claim is asserted or made, any determination required to be made with respect to whether an Indemnitee's conduct complies with the standards set forth under applicable Law, the applicable organizational documents of the Company in or any of its last full fiscal year prior to Subsidiaries or any indemnification agreements or arrangements of the date hereof for Company or any of its Subsidiaries, as the Company’s current policies case may be, shall be made by independent legal counsel selected jointly by such Indemnitee and the Surviving Corporation.
(e) Each of directors’ Parent, the Surviving Corporation and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”)Indemnitee shall cooperate, and if cause their respective Affiliates to cooperate, in the defense of any Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such premiums for such “tail” policies would exceed 300% conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(f) As of the Base AmountEffective Time, then the Company shall purchase policies that provide have obtained, and for a six-year period thereafter, the maximum coverage available at an annual premium equal to 300% of Surviving Corporation shall maintain in effect, a so-called "tail" policy for such six-year period from the Base Amount. The Company shall in good faith cooperate with Parent Company's current directors' and officers' liability insurance carrier, covering acts or omissions occurring prior to the Effective Time with respect to those persons who are currently covered by the procurement of such “tail” policies, subject to such Company's directors' and officers' liability insurance policy being fully prepaid, including on terms with respect to such coverage and amount no less favorable to the selection Company's directors and officers currently covered by such insurance than those of such policy in effect on the date hereof (the "MINIMUM INSURANCE"); provided, however, that if the Company is unable to obtain the Minimum Insurance for a premium of $750,000 or less, then the Company shall, at the election of the brokerRepresentative (i) obtain as much comparable insurance as practicable for a premium of $750,000 or (ii) obtain the Minimum Insurance and treat the premium cost thereof that exceeds $750,000 as the excess D&O Tail Cost (such amount in excess of $750,000, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder"EXCESS D&O TAIL COST").
(cg) The provisions of this Section 6.05 (i) are intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have pursuant to any indemnification agreements or arrangement of the Company or any of its Subsidiaries set forth in Section 6.05 of the Company Disclosure Schedule.
(h) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person person, then, and in each such case, Parent shall cause proper provision to shall be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes shall assume all of the obligations thereof set forth in this Section 5.46.05.
(i) The obligations of Parent and the Surviving Corporation under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 6.05 applies without the consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 6.05 applies shall be third party beneficiaries of this Section 6.05).
(j) Parent, from and after the Effective Time, shall unconditionally guarantee the timely payment of all funds owed by, and the timely performance of all other obligations of, the Surviving Corporation under this Section 6.05. Parent agrees that its payment obligations hereunder are unconditional, irrespective of the validity or enforceability of this Agreement against the Surviving Company or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor (other than the defenses of statute of limitations, which are not waived). Parent hereby acknowledges that its obligations under this Section 6.05 constitute a guaranty of payment and not merely of collectability and Parent hereby waives (i) promptness, diligence, presentment, demand of payment, protest and order in connection with this guarantee and (ii) any requirement that any party enforcing the guarantee exhaust any right to take any action against the Surviving Company or any other person prior to or contemporaneously with proceeding to exercise any right against Parent hereunder.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent From and Merger Sub agree that all rights to indemnification, exculpation, and advancement of expenses existing in favor of the current or former directors and officers of the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to after the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation shall and shall continue cause its Subsidiaries to indemnify and hold harmless each present and former director, officer and employee of the Company and its Subsidiaries (each an “Indemnified Person”) against any and all costs, expenses (including reasonable attorneys’ fees), judgments, fines, penalties, taxes, losses, claims, damages or other liabilities incurred in full force connection with any Action or threatened Action, whether civil, criminal, administrative or investigative, whether formal or informal, arising out of or pertaining to matters existing or occurring on or prior to the Closing Date (including the Merger, the Financing and effect until the later of six years other transactions contemplated hereby), whether asserted or claimed prior to, on or after the Effective Time or Closing Date, to the expiration of fullest extent that the applicable statute of limitations Company and its Subsidiaries are permitted under Delaware Law, including with respect to any such claims against directors or officers the advancement of the Company arising out of such acts or omissions, except as otherwise required by applicable Lawexpenses.
(b) For a period of six (6) years after from the Effective Time, Parent shallexcept as may be required by applicable Law, (i) the certificate of incorporation and shall cause bylaws (or comparable organizational documents) of the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect each of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms its Subsidiaries shall contain provisions no less favorable with respect to coverage indemnification, advancement of expenses and amount no less favorable exculpation of present and former directors, officers and employees than those are presently set forth in the certificate of incorporation and bylaws (or comparable organizational documents) of such policies in effect on the date hereof. The entity, and (ii) no such provisions of the immediately preceding sentence shall be deemed amended, repealed or otherwise modified during such period in any manner adverse to have been satisfied if, at or prior any such individuals.
(c) Prior to the Effective TimeClosing Date, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid a “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance policy for the Company and fiduciary liability insurance maintained its Subsidiaries and their present and former directors, officers and employees who are currently covered by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance coverage currently maintained by the Company that shall provide such directors, officers and fiduciary employees with coverage for six years following the Closing Date of not less than the existing coverage and have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance (coverage currently maintained by the “Base Amount”)Company and its Subsidiaries. Parent shall pay for the full costs of such tail policy. Following the Closing, the Surviving Corporation shall and shall cause its Subsidiaries to, and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to and its Subsidiaries to, maintain such policies policy in full force and effect for their full termeffect, and continue to honor the obligations thereunder.
(cd) From and after the Effective Time, the Surviving Corporation shall, and shall cause its Subsidiaries to, and Parent shall cause the Surviving Corporation and its Subsidiaries to, honor in accordance with its terms, each indemnification agreement set forth on Section 3.13 of the Company Disclosure Letter in effect between the Company or any of its Subsidiaries and any Indemnified Person as of the date hereof.
(e) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or otherwise conveys all or substantially all a majority of its properties and assets to any Person thenPerson, and in each such case, Parent shall cause then proper provision to shall be made so that the successor successors and assign assigns of Parent the Surviving Corporation, or the Surviving Corporation assumes holder of its assets, as the case may be, shall succeed to the obligations set forth in this Section.
(f) This Section 5.4is intended to be for the benefit of, and shall be enforceable by, each of the Persons entitled to indemnification and their respective heirs and legal representatives. The indemnification, advancement of expenses and exculpation provided for herein shall not be deemed exclusive of any other rights to which any such Person may be entitled, whether pursuant to law, contract or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Neustar Inc)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all rights to indemnification, exculpation, and advancement of expenses indemnification existing in favor of the current or former directors and officers of the Company or any of its Subsidiaries as provided in the Company Organizational Documents, employment agreements, Company’s or elsewhere its Subsidiaries’ certificate of incorporation or bylaws (or comparable governing documents) as in effect on the date of this Agreement or in any indemnification agreement listed in Section 6.11 of the Disclosure Schedule as in effect on the date of this Agreement for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, Time shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against such directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law. From the Effective Time through the sixth anniversary of the Closing Date, the certificate of incorporation and bylaws (or comparable governing documents) of the Surviving Corporation and its Subsidiaries shall contain, and Parent shall cause the certificate of incorporation and bylaws (or comparable governing documents) of the Surviving Corporation and its Subsidiaries to so contain, provisions (applicable to the current and former directors and officers of the Company and its Subsidiaries as of the Effective Time) no less favorable with respect to indemnification, advancement of expenses and exculpation than are presently set forth in the certificate of incorporation and bylaws (or comparable governing documents) of the Company and its Subsidiaries.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior Prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid a “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance policy (the “Tail Policy”) for the Company and fiduciary liability insurance maintained its Subsidiaries and their current and former directors, officers and employees who are currently covered by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then coverage currently maintained by the Company in a form reasonably acceptable to Parent that shall purchase policies that provide the maximum such directors, officers and employees with coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to for six years following the Effective Time with respect of not less than the existing coverage and have other terms not less favorable to the procurement of such “tail” policiesinsured persons than the directors’ and officers’ liability insurance coverage currently maintained by the Company. Following the Effective Time, subject to Parent shall maintain such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full termeffect, and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person Person, then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation assumes the obligations set forth in this Section.
(d) The rights of the indemnified Persons under this Section 5.4shall be in addition to (and not in limitation of) any rights such Persons may have under the certificate of incorporation or bylaws or comparable governing documents of the Company or any of its Subsidiaries, or under any applicable Contracts or Laws.
(e) The provisions of this Section shall survive consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each indemnified party, his or her heirs and his or her legal representatives.
Appears in 1 contract
Samples: Merger Agreement (Neustar Inc)
Indemnification, Exculpation and Insurance. (a) Parent The articles of incorporation and Merger Sub agree that all rights to indemnification, exculpation, and advancement of expenses existing in favor the bylaws of the current or former directors Surviving Corporation shall contain the provisions with respect to indemnification and officers of the Company as provided exculpation from liability set forth in the Company Organizational DocumentsCompany's articles of incorporation and bylaws on the date of this Agreement, employment agreementswhich provisions shall not be amended, repealed or elsewhere otherwise modified for acts a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or omissions occurring prior to the Effective TimeTime were directors, including in respect officers, employees or agents of the Merger TransactionsCompany, unless such modification is required by law. Parent shall be assumed and performed by guarantee the obligations of the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers the indemnification provisions contained in the Surviving Corporation's articles of the Company arising out of such acts or omissions, except as otherwise required by applicable Lawincorporation and bylaws.
(b) For six (6) To the extent coverage is reasonably available under the Company's current directors' and officers' liability insurance policy or otherwise, Parent will extend the discovery or reporting period under such policy for up to three years after from the Effective Time, Parent shall, Time to maintain in effect directors' and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary ' liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person pre-acquisition acts for those persons who are currently covered by the Company’s 's directors' and officers’ and directors’ liability and fiduciary ' liability insurance policies policy (a copy of which has been heretofore delivered to Parent) (the "Indemnification Parties") on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the terms of such current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect coverage; provided, however, that in no event shall Parent be required to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on expend for such “tail” policies annual premiums three-year extension an amount in excess of 300150% of the annual premiums premium currently paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of insurance; and provided further that if the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement cost of such “tail” policiesthree-year extension exceeds such 150% amount, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation be obligated to maintain obtain such policies in full force and effect extension as is available for their full term, and continue to honor the obligations thereundera cost not exceeding such amount.
(c) In the event that Parent, the Surviving Corporation or any of its their successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers all or substantially all of its properties and assets to any Person thenperson, then and in each such case, Parent proper provisions shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Corporation, as the case may be, shall assume the obligations set forth in this Section 5.45.14.
(d) This Section 5.14 shall survive the consummation of the Merger at the Effective Time, is intended to benefit the Company, Parent, the Surviving Corporation and the Indemnified Parties, and shall be binding on all successors and assigns of Parent and the Surviving Corporation.
Appears in 1 contract
Samples: Merger Agreement (Medtronic Inc)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all rights to indemnificationVictory, exculpation, and advancement of expenses existing in favor of the current or former directors and officers of the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later a period of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissionsTime, will, except as otherwise required by any applicable Law, cause the organizational documents of the Surviving Company to contain provisions no less favorable to each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of Chucktaylor (each an “Indemnitee” and, collectively, the “Indemnitees”) with respect to limitation of Liabilities of directors and officers and indemnification than are set forth as of the date of this Agreement in the organizational documents of Chucktaylor, which provisions may not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior Prior to the Effective Time, the Company or Parent (on behalf Chucktaylor will obtain as of the Surviving Corporation) shall purchase six (6) year Effective Time and pay for in full a prepaid “tail” policies insurance policy substantially on the terms reviewed by Victory prior to the Effective Time (including, the cost, scope and conditions providing coverage retentionsthereof), limits and other material terms no less favorable than with a claims period of at least six years from the current policies of Effective Time with respect to directors’ and officers’ liability insurance in amount and fiduciary liability insurance maintained by the Company with respect to matters scope at least as favorable as Chucktaylor’s existing policies for claims arising at from facts or prior to the Effective Time, except events that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent occurred prior to the Effective Time with respect to the procurement those directors and officers of such “tail” policies, subject to such policy being fully prepaid, including with respect Chucktaylor who are currently (and any additional persons who prior to the selection of the broker, available policy price Effective Time become) covered by Chucktaylor’s directors’ and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderofficers’ liability insurance policy.
(c) The provisions of this Section 4.16 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs and his or her representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. The obligations of Victory and the Surviving Company under this Section 4.16 may not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 4.16 applies unless (A) such termination or modification is required by applicable Law or (B) the affected Indemnitee has consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 4.16 applies will be third party beneficiaries of this Section 4.16).
(d) In the event that ParentVictory, the Surviving Corporation Company or any of its their respective successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall is not be the continuing or surviving corporation company or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person Person, then, and in each such case, Parent shall cause proper provision to will be made so that the successor successors and assign assigns of Parent or Victory and the Surviving Corporation assumes Company will assume all of the obligations of set forth in this Section 5.44.16.
(e) Chucktaylor will use reasonable best efforts to cause any insurance policies of Chucktaylor currently in effect to be amended so that the Surviving Company (as the successor of Chucktaylor) will have the ability to exercise any and all of its rights under any such insurance policy (including the right to make any insurance claims and receive insurance payments under any such policy) in respect of any period prior to the Effective Time.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that shall, to the fullest extent permitted by Law, cause the Surviving Corporation to honor all rights the Company’s obligations to indemnification, exculpation, and advancement of expenses existing in favor of indemnify the current or former directors and officers directors, officers, employees or agents of the Company as provided in and the Company Organizational Documents, employment agreements, or elsewhere Subsidiaries (the “Covered Persons”) for acts or omissions by such Covered Persons occurring prior to the Effective Time, including in respect Time to the extent that such obligations of the Company exist on the date of this Agreement, whether pursuant to the Company Charter, the Company Bylaws or individual indemnity or other agreements to which such Covered Persons are a party, and such obligations shall survive the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until in accordance with the later terms of six years after the Company Charter, the Company Bylaws and such individual indemnity agreements from the Effective Time or until the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company such Covered Persons arising out of such acts or omissions. Parent shall, except as otherwise required to the fullest extent permitted by applicable Law, cause the Surviving Corporation to advance funds for expenses incurred by Covered Persons so indemnified in defending a civil or criminal action, suit or proceeding relating to the indemnification obligations referenced in the immediately preceding sentence in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Covered Person to repay such amount if it shall be ultimately determined that he or she is not entitled to the indemnification referenced in the immediately preceding sentence.
(b) For a period of six (6) years after the Effective Time, Parent shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance maintained by the Company (provided that Parent may substitute therefor policies with reputable and financially sound carriers of at least the same coverage and amounts containing terms and conditions which are no less advantageous) with respect to claims arising from or related to facts or events which occurred at or before the Effective Time; provided, however, that Parent shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 300% of the annual premiums paid as of the date hereof by the Company for such insurance (such 300% amount, the “Maximum Premium”). If such insurance coverage cannot be obtained at all, or can only be obtained at an annual premium in excess of the Maximum Premium, Parent shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for an annual premium equal to the Maximum Premium.
(c) From and after the Effective Time, to the fullest extent permitted by Law, Parent shall, and shall cause the Surviving Corporation to, maintain officersindemnify, defend and hold harmless any Covered Person who acts or has acted as a fiduciary under any Company Benefit Plan (each an “Indemnified Party”) against all losses, claims, damages, liabilities, fees and expenses (including attorneys’ fees and directors’ liability disbursements), judgments, fines and fiduciary liability insurance amounts paid in settlement (in the case of settlements, with the approval of the indemnifying party (which approval shall not be unreasonably withheld)) (collectively, “Losses”), as incurred (payable monthly upon written request which request shall include reasonable evidence of the Losses set forth therein) to the extent arising from, relating to, or otherwise in respect of, any actual or threatened action, suit, proceeding or investigation, in respect of acts, errors actions or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, Time in connection with such Indemnified Party’s duties as an officer or director of the Company or Parent (on behalf any of its subsidiaries, including in respect of this Agreement, any other Transaction Agreement, the Surviving CorporationMerger and the other Transactions; provided, however, that an Indemnified Party shall not be entitled to indemnification under this Section 6.06(c) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies for Losses arising out of directors’ and officers’ liability insurance and fiduciary liability insurance maintained actions or omissions by the Company with respect to matters arising at Indemnified Party constituting (i) a breach of this Agreement or prior to the Effective Timeany other Transaction Agreement, except that the Company may not commit (ii) criminal conduct or spend on such “tail” policies annual premiums in excess (iii) any violation of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”)federal, and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderstate or foreign securities laws.
(cd) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers all or substantially all of its properties and assets to any Person thenPerson, then and in each such case, Parent shall cause proper provision to shall be made so that such continuing or surviving corporation or entity or transferee of such assets, as the successor and assign case may be, shall assume all of Parent or the Surviving Corporation assumes the applicable obligations set forth in this Section 5.46.06.
(e) The Covered Persons (and their successors and heirs) are intended third party beneficiaries of this Section 6.06, and this Section 6.06 shall not be amended in a manner that is adverse to the Covered Persons (including their successors and heirs) or terminated without the consent of the Covered Persons (including their successors and heirs) affected thereby.
Appears in 1 contract
Samples: Merger Agreement (Jameson Inns Inc)
Indemnification, Exculpation and Insurance. (a) Each of Parent and Merger Sub agree that the Surviving Entities shall, and Parent shall cause the Surviving Entities to, assume and perform the obligations with respect to all rights to indemnificationindemnification and exculpation from liabilities, exculpation, and including advancement of expenses existing expenses, for acts or omissions occurring at or prior to the Effective Time in favor of the current or former directors and directors, managers, members or officers of Azteca, IM, Cine and their respective Subsidiaries that are existing, and any person who becomes a director or officer prior to the Company Effective Time (each an "Indemnified Party") as provided in the Company Organizational Documentsorganizational documents of Azteca, employment agreementsIM, Cine and each of their respective Subsidiaries, as applicable, or elsewhere for acts any indemnification Contract between such Indemnified Party, on the one hand, and Azteca, IM, Cine or omissions occurring prior to their respective Subsidiaries, as applicable, on the other hand (in each case, as in effect on the date hereof), without further action, as of the Effective Time, including in respect of Time and such obligations shall survive the Merger Transactions, shall be assumed and performed by the Surviving Corporation Effective Time and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations in accordance with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) their terms. For no less than six (6) years after the Effective Time, Parent shall cause the certificate of incorporation and bylaws (or similar organizational documents, as applicable) of the Surviving Entities and their Subsidiaries to contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Azteca, IM, Cine and their respective Subsidiaries than are presently set forth in the organizational documents of Azteca, IM, Cine and each of their respective Subsidiaries, as applicable.
(b) Prior to the Effective Time, Azteca, Cine and IM shall obtain and fully pay for "tail" insurance policies with a claims period of no more than six (6) years from and after the Effective Time with respect to directors' and officers' liability insurance and fiduciary liability insurance with benefits and levels of coverage no less favorable than Azteca's, Cine's and IM's existing policies, respectively, with respect to matters existing or occurring at or prior to the Effective Time (including with respect to acts and omissions occurring in connection with this Agreement or the transactions or actions contemplated hereby) and, if such policies have been obtained, Parent shall, and shall cause the Surviving Corporation toEntities, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of actsas applicable, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect after the Effective Time; provided, however, that in satisfying its obligation under this Section 7.10(b), none of Azteca, IM, Cine or Parent shall pay more than 200% of the annual premium paid as of the date of this Agreement by Azteca, Cine or IM, as applicable, to obtain such coverage. It is understood and agreed that in the event such coverage cannot be obtained for their full termsuch amount or less in the aggregate, Azteca, IM, Cine and Parent shall only be obligated to provide the maximum coverage as may be obtained for such aggregate amount. If, as of the Effective Time, Azteca, Cine or IM shall not have obtained the "tail" policies described in the previous sentence, for six (6) years after the Effective Time, Parent shall maintain (directly or indirectly through Azteca's, Cine's or IM's existing insurance programs, as applicable) in effect Azteca's, Cine's and IM's current directors' and officers' liability insurance with respect to matters existing or occurring at or prior to the Effective Time (including with respect to acts and omissions occurring in connection with this Agreement or the transactions or actions contemplated hereby), covering each Person currently covered by Azteca's, Cine's and IM's directors' and officers' liability insurance policy, as applicable, on terms with respect to such coverage and amounts no less favorable than those of such policy in effect on the date hereof; provided, however, that Parent may substitute therefor policies of Parent with another insurance company of comparable standing to Azteca's, Cine's or IM's current insurer, as applicable, and continue containing terms and conditions, including with respect to honor coverage (including as coverage relates to deductibles and exclusions) and amounts no less favorable to such directors and officers; provided, further, that in satisfying its obligation under this Section 7.10(b), none of Azteca, IM, Cine or Parent shall pay more than 200% per annum of the obligations thereunderannual premiums paid as of the date of this Agreement by Azteca, Cine or IM, as applicable, to obtain such coverage. It is understood and agreed that in the event such coverage cannot be obtained for such amount or less in the aggregate, Azteca, IM, Cine and Parent shall only be obligated to provide the maximum coverage as may be obtained for such aggregate amount.
(c) In the event that Parent, the Surviving Corporation or any The provisions of its successors or assigns shall this Section 7.10 (i) consolidate with are intended to be for the benefit of, and will be enforceable from and after the Effective Time by, each Indemnified Party, his or merge into her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person and may have by Contract or otherwise. The obligations under this Section 7.10 shall not be terminated, amended or otherwise modified in such a manner as to adversely affect any Indemnified Party (or any other person who is a beneficiary under a "tail" policy referred to in Section 7.10(b) (and their heirs and representatives)) without the continuing or surviving corporation or entity prior written consent of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation assumes the obligations set forth in this Section 5.4person.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree JR agrees that all rights to indemnification, exculpation, and advancement of expenses indemnification existing in favor of the current or former directors and officers of the Company Dakota as provided in the Company Organizational Documentsarticles of incorporation and bylaws of Dakota as in effect on the date of this Agreement, employment agreements, or elsewhere for acts or omissions occurring prior to the First Merger Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and the Surviving LLC, respectively, and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against such directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after Prior to the First Merger Effective Time, Parent shallDakota may, at such party’s option and shall cause expense, purchase (and pay in full the Surviving Corporation to, maintain aggregate premium for) a “tail” directors’ and officers’ and directors’ liability and fiduciary liability insurance policy with coverage and amounts containing terms and conditions that are substantially equivalent to and in respect any event not less favorable to the current and former officers and directors of actsDakota, errors or omissions occurring on or before in the Effective Timeaggregate, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage claims arising out of or relating to events that occurred before or at the First Merger Effective Time and amount no less favorable than those the Second Merger Effective Time (including in connection with the negotiation and execution of such policies in effect on this Agreement and the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied iftransactions contemplated by this Agreement), at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior Dakota, to the Effective Time, except extent that the Company may such a policy can be obtained at a cost that does not commit or spend on such “tail” policies annual premiums in excess of exceed 300% of the last annual premiums premium paid by the Company in its last full fiscal year prior to the date hereof Dakota for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (maintained by Dakota as of the “Base Amount”)date of this Agreement provided, and that if Dakota, is unable to so acquire such premiums for such a “tail” policy then JR shall cause the Surviving LLC to maintain in effect for at least six years after the Effective Time the current policies would exceed of directors’ and officers’ liability insurance maintained by Dakota, as the case may be, or policies with coverage and amounts containing terms and conditions that are no less advantageous to the insured Persons with respect to claims arising out of or relating to events that occurred before or at the First Merger Effective Time or the Second Merger Effective Time, as the case may be (including in connection with the negotiation and execution of this Agreement and the transactions contemplated by this Agreement), so long as JR or the Surviving LLC, as applicable, are not required to pay an aggregate premium in excess of 300% of the Base Amountlast annual premium paid for such insurance before the date of this Agreement (such 300% amount being the “Maximum Premium”). If Dakota is unable to obtain the “tail” policy and JR or the Surviving LLC, as the case may be, is unable to obtain the insurance described in the prior sentence for an amount less than or equal to the applicable Maximum Premium, then JR shall cause the Company shall purchase policies that provide the maximum coverage available at Surviving LLC to instead obtain as much comparable insurance as possible for an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderapplicable Maximum Premium.
(c) In The provisions of this Section 6.8 shall survive consummation of the event that Parent, Mergers and are intended to be for the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person thenbenefit of, and in will be enforceable by, each such caseindemnified party, Parent shall cause proper provision to be made so that the successor his or her heirs and assign of Parent his or the Surviving Corporation assumes the obligations set forth in this Section 5.4her legal representatives.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all All rights to indemnification, exculpation, ------------------------------------------ indemnification and advancement of expenses exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time existing in favor of the current or former directors and or officers of the Company or each of its Subsidiaries as provided in the Company Organizational Documentstheir respective certificates of incorporation or bylaws (or comparable organizational documents) and existing indemnity contracts will be assumed by Patriot and Patriot will be directly responsible for such indemnification, employment agreementswithout further action, or elsewhere for acts or omissions occurring prior to as of the Effective Time, including in respect of the Merger Transactions, shall be assumed Time and performed by the Surviving Corporation and shall will continue in full force and effect until in accordance with their respective terms for a period not less than six years from the later Effective Time. In addition, from and after the Effective Time, directors and officers of the Company who become or remain directors or officers of Patriot, OPCO or any Subsidiary thereof will be entitled to the same indemnity rights and protections (including those provided by directors' and officers' liability insurance) as are afforded to directors and officers of Patriot, OPCO or such Subsidiary, as the case may be. Notwithstanding any other provision hereof, the provisions of this Section 5.13 (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.
(b) Patriot will maintain in effect for not less than six years after the Effective Time one or more policies of directors' and officers' liability insurance that provide coverage for the expiration of the applicable statute of limitations with respect to any such claims against current directors or and officers of the Company arising out of such acts that is substantially similar to that provided by the policies maintained by or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect behalf of the Merger Transactions, covering each such person currently covered by Company and its Subsidiaries on the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms date hereof with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, matters existing or occurring at or prior to the Effective Time; provided, however, that if the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies aggregate annual premiums in excess of 300for such insurance at -------- ------- any time during such period exceed 150% of the annual premiums per annum rate of premium currently paid by the Company in and its last full fiscal year prior to Subsidiaries for such insurance on the date hereof for of this Agreement, then Patriot will cause the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”)Surviving Corporation to, and if such premiums for such “tail” policies would exceed 300% of the Base AmountSurviving Corporation will, then the Company shall purchase policies that provide the maximum coverage that will then be available at an annual premium equal to 300150% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderrate.
(c) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation assumes the obligations set forth in this Section 5.4.
Appears in 1 contract
Samples: Merger Agreement (Patriot American Hospitality Operating Co\de)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree Buyer agrees that all rights to indemnification, exculpation, and advancement of expenses indemnification existing in favor of the current or former directors and officers of any of the Company Transferred Companies as provided in the Company Organizational Documents, employment agreements, Company’s or elsewhere its Subsidiaries’ certificate of incorporation or bylaws (or similar organizational documents) as in effect on the date of this Agreement or in any indemnification agreement listed in Section 6.10 of the Disclosure Schedule as in effect on the date of this Agreement for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, Time shall be assumed and performed by the Surviving Corporation Company and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against such directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law. From the Effective Time through the sixth anniversary of the Closing Date, the certificate of incorporation and bylaws (or similar organizational documents) of the Transferred Companies shall contain, and Buyer shall cause the certificate of incorporation and bylaws (or similar organizational documents) of the Transferred Companies to so contain, provisions (applicable to the current and former directors and officers of the Transferred Companies as of the Effective Time) no less favorable with respect to indemnification, advancement of expenses and exculpation than are presently set forth in the certificate of incorporation and bylaws (or comparable governing documents) of the Transferred Companies.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior Prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid a “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance policy (the “Tail Policy”) for each of Transferred Companies and fiduciary liability insurance maintained their current and former directors, officers and employees who are currently covered by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance coverage currently maintained by the Transferred Companies in a form reasonably acceptable to Buyer that shall provide such directors, officers and fiduciary liability insurance (the “Base Amount”), and if such premiums employees with coverage for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to six years following the Effective Time with respect of not less than the existing coverage and have other terms not less favorable to the procurement of such “tail” policiesinsured persons than the directors’ and officers’ liability insurance coverage currently maintained by the Transferred Companies. Following the Effective Time, subject to Buyer shall maintain such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full termeffect, and continue to honor the obligations thereunder.
(c) In the event that ParentBuyer, any of the Surviving Corporation Transferred Companies or any of its their successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation company or entity of such consolidation or merger merger, or (ii) transfer all or substantially all its properties and assets to any Person Person, then, and in each such case, Parent Buyer shall cause proper provision to be made so that the successor and assign of Parent Buyer or the Surviving Corporation applicable Transferred Company assumes the obligations set forth in this Section 5.46.10.
(d) The rights of the indemnified Persons under this Section 6.10 shall be in addition to (and not in limitation of) any rights such Persons may have under the certificate of incorporation or bylaws (or similar organizational documents) of any of the Transferred Companies, or under any applicable Contracts or Laws.
(e) The provisions of this Section 6.10 shall survive consummation of the Share Purchase and are intended to be for the benefit of, and shall be enforceable by, each indemnified party, his or her heirs and his or her legal representatives
Appears in 1 contract
Samples: Stock Purchase Agreement (IHS Inc.)
Indemnification, Exculpation and Insurance. (a) Parent The certificate of incorporation and Merger Sub agree that all rights to indemnification, exculpation, and advancement the by-laws of expenses existing in favor of the current or former directors and officers of the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's Restated Certificate of Incorporation and By-laws on the date of this Agreement, which provisions shall continue in full force and effect until the later not be amended, repealed or otherwise modified for a period of six years after following the Effective Time or in any manner that would adversely affect the expiration rights thereunder of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring individuals who on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective TimeTime were directors, the Company officers, employees or Parent (on behalf agents of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentionsCompany, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained unless such modification is required by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage optionslaw. Parent shall cause the Surviving Corporation to comply with its obligations with respect to the indemnification provisions contained in the Surviving Corporation's certificate of incorporation and by-laws.
(b) For three years following the Effective Time, Parent shall maintain in effect directors' and officers' liability insurance covering those persons who are currently covered by the Company's directors' and officers' liability insurance policy (a copy of which has been heretofore delivered to Parent) (the "INDEMNIFIED PARTIES") with coverage limits no less favorable than the terms of such policies current insurance coverage; PROVIDED, HOWEVER, that in full force no event shall Parent be required to expend in any one year an amount in excess of 200% of the annual premiums currently paid by the Company for such insurance; and effect PROVIDED FURTHER that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available for their full term, and continue to honor the obligations thereundera cost not exceeding such amount.
(c) In the event that Parent, the Surviving Corporation or any of its their successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers all or substantially all of its properties and assets to any Person thenperson, then and in each such case, Parent proper provisions shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Corporation, as the case may be, shall assume the obligations set forth in this Section 5.45.7.
(d) This Section 5.7 shall survive the consummation of the Merger at the Effective Time, is intended to benefit the Company, Parent, the Surviving Corporation and the Indemnified Parties, and shall be binding on all successors and assigns of Parent and the Surviving Corporation.
Appears in 1 contract
Samples: Merger Agreement (Hach Co)
Indemnification, Exculpation and Insurance. (a) Each of Parent and Merger Sub agree that the Company agrees that, to the fullest extent permitted under applicable law, all rights to indemnification, exculpation, and 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 and officers of the Company Company, as provided in the Company Organizational Documentsits certificate of incorporation, employment agreementsby-laws or other agreements providing indemnification, advancement or elsewhere for acts or omissions occurring prior to the Effective Timeexculpation, including in respect of shall survive the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until in accordance with their terms, that Parent shall cause the later of Surviving Corporation to honor all such rights and that for six (6) years from and after the Effective Time Time, no such provision in any certificate or articles of incorporation, by-laws (or comparable organizational document) or other agreement shall be amended, modified or repealed in any manner that would materially and adversely affect the expiration of the applicable statute of limitations rights or protections thereunder to any such individual with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Lawomissions occurring at or prior to the Effective Time.
(b) For six (6) years from and after the Effective Time, the Surviving Corporation shall maintain or obtain directors’ and officers’ liability insurance policies covering acts or omissions occurring on or prior to the Effective Time with respect to those persons who are currently covered by the Company’s respective directors’ and officers’ liability insurance policies on terms with respect to such coverage and in amounts no less favorable to the Company Indemnified Parties than those set forth in the relevant policy in effect on the date of this Agreement; provided, that the annual cost thereof shall not exceed 300% of the annual cost of such policies as of the date of this Agreement. If such insurance coverage cannot be maintained for such cost, Parent shall maintain the most advantageous policies of directors’ and officers’ insurance otherwise obtainable for such cost. Prior to the Effective Time, the Company may purchase a six-year “tail” prepaid policy on terms and conditions no less favorable to the Company Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company, covering without limitation the transactions contemplated hereby; provided, that the aggregate cost thereof shall not exceed 300% of the annual cost of the directors’ and officers’ liability insurance maintained by the Company as of the date of this Agreement as set forth in Section 5.04(b) of the Company Disclosure Letter. If such “tail” prepaid policy has been obtained by the Company prior to the Effective Time, it shall satisfy the obligations set forth in the first two sentences of this paragraph (b). Parent may, at its sole discretion, purchase a “tail” insurance policy with respect to the Company’s employment practice liability, fiduciary liability, cyber liability, product liability and any other insurance coverage for liability and, if Parent determines to purchase such insurance policy or policies, the Company shall cooperate with Parent in obtaining such policy or policies on terms and conditions acceptable to Parent, it being understood that the costs of all such tail policies shall be borne by Parent.
(c) For six (6) years from and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ indemnify and directors’ liability hold harmless each present director and fiduciary liability insurance officer of the Company (in respect each case, for acts or failures to act in such capacity), determined as of actsthe date of this Agreement, errors and any person who becomes such a director or omissions occurring on or before officer between the date of this Agreement and the Effective TimeTime (collectively, the “Company Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees, costs and expenses), judgments, fines, losses, claims, amounts paid in respect settlement, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect or relating to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Company or Parent Effective Time (on behalf of including any matters arising in connection with the transactions contemplated by this Agreement), to the fullest extent permitted by applicable law and the Surviving CorporationCorporation shall also advance expenses (including reasonable attorneys’ fees, costs and expenses) shall purchase six to such persons as incurred to the fullest extent permitted under applicable law; provided, that the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification.
(6d) year prepaid “tail” policies on terms The provisions of this Section 5.04 are (i) intended to be for the benefit of, and, from and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to after the Effective Time, except that will be enforceable by, each of the Company may not commit or spend on such “tail” policies annual premiums Indemnified Parties and (ii) in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”)addition to, and if not in substitution for or in limitation of, any other rights to indemnification, advancement of expenses, exculpation or contribution that any such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderperson may have by contract or otherwise.
(ce) In the event that Parent, Parent or the Surviving Corporation or any of its their respective successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers all or substantially all of its properties and assets to any Person person, then, and in each such case, Parent shall cause proper provision to shall be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Corporation, as the case may be, shall assume the obligations set forth in this Section 5.45.04.
Appears in 1 contract
Samples: Merger Agreement (Avedro Inc)
Indemnification, Exculpation and Insurance. (a) Parent The articles of incorporation and Merger Sub agree that all rights to indemnification, exculpation, and advancement of expenses existing in favor the by-laws of the current or former directors Surviving Corporation shall contain the provisions with respect to indemnification and officers of exculpation from liability no less favorable than the Company as provided provisions set forth in the Company Organizational DocumentsCompany's articles of incorporation and by-laws on the date of this Agreement, employment agreementswhich provisions shall not be amended, repealed or elsewhere otherwise modified for acts a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or omissions occurring prior to the Effective TimeTime were directors, including in respect of the Merger Transactionsofficers, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time employees or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers agents of the Company arising out or its Subsidiaries and were entitled to indemnification under the Company's articles of incorporation and bylaws, unless such acts or omissions, except as otherwise modification is required by applicable Lawlaw.
(b) For six years from the Effective Time, Parent shall maintain in effect directors' and officers' liability insurance covering those persons who are currently covered by the Company's directors' and officers' liability insurance policy (6a copy of which has been heretofore delivered to Parent) on terms no less favorable than the terms of such current insurance coverage; provided, however, that (i) in lieu of the purchase of such insurance by the Surviving Corporation or Parent, the Company, with Parent's written consent, may purchase a five-year extended reporting period endorsement ("reporting tail coverage") under its existing directors' and officers' liability insurance coverage and (ii) if the cost of such insurance in any year during such six-year period shall exceed 150% of the premium cost for such policy during the year ended June 30, 2000 (the "Maximum Premium"), then Parent shall cause the Surviving Corporation to, and the Surviving Corporation shall, provide coverage affording the same protection as maintained by Parent as of such date for its officers and directors. The Company represents to Parent that the Maximum Premium is $280,000.
(c) In addition to the other rights provided for in this Section 5.6, for six years after the Effective Time, Parent shallhereby, to the fullest extent permitted by applicable law, guaranties the obligations of the Company under Section 5.6 (a) for the directors and shall cause executive officers which are identified in Section 5.6(c) of the Company Disclosure Schedule. Parent unconditionally and irrevocably waives any provision under applicable law that may limit the enforceability of such guaranty.
(d) The obligations of the Company, the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance Parent contained in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect this Section 5.6 shall be binding on the date hereof. The provisions successors and assigns of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of and the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that If Parent, the Surviving Corporation or any of its their successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers all or substantially all of its properties and or assets to any Person thenperson, then and in each such case, Parent proper provisions shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Corporation, as the case may be, shall assume the obligations set forth in this Section 5.45.6.
Appears in 1 contract
Samples: Merger Agreement (Anchor Gaming)
Indemnification, Exculpation and Insurance. (a) Parent Each of Aztar and Merger Sub agree that Pinnacle agrees that, to the fullest extent permitted under applicable law, all rights to indemnification, exculpation, indemnification and advancement of expenses 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, officers, employees or fiduciaries under benefit plans currently indemnified of Aztar and officers of the Company its subsidiaries as provided in the Company Organizational Documentstheir respective certificate or articles of incorporation, employment agreements, by-laws (or elsewhere for acts comparable organizational documents) or omissions occurring prior to the Effective Time, including in respect of other agreements providing indemnification shall survive the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until in accordance with their terms. The certificate of incorporation and by-laws of the later Surviving Corporation shall continue to contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Aztar’s certificate of incorporation and by-laws, which provisions shall not be amended, repealed or otherwise modified for a period of six years after from the Effective Time or in any manner that would adversely affect the expiration rights thereunder of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Lawindividuals.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, shall maintain in effect the directors’ and officers’ liability (and directors’ liability and fiduciary liability fiduciary) insurance in respect of acts, errors policies covering acts or omissions occurring on or before prior to the Effective Time, including in Time with respect of the Merger Transactions, covering each such person to those persons who are currently covered by the CompanyAztar’s respective directors’ and officers’ liability (and directors’ liability and fiduciary liability fiduciary) insurance policies on terms with respect to such coverage and amount no less in amounts at least as favorable than as those of such policies set forth in the relevant policy in effect on the date hereof. The provisions of this Agreement, except in no event shall the Surviving Corporation be required to make annual premium payments in connection therewith in excess of the immediately preceding sentence amount set forth on Section 5.06(b) of the Aztar Disclosure Letter (the “Maximum Amount”), and if the Surviving Corporation is unable to obtain the insurance required by this Section 5.06(b), the Surviving Corporation shall be deemed maintain the most advantageous policies of directors’ and officers’ insurance otherwise obtainable for an annual premium equal to have been satisfied ifthe Maximum Amount. Notwithstanding the foregoing, either Pinnacle or Aztar may elect in lieu of the foregoing insurance, prior to the Effective Time, to obtain and fully pay for a policy (providing only for the Side A coverage for the Aztar Indemnified Parties (as defined in clause (c) below) with a claims period of at least six years from the Effective Time from an insurance carrier with the same or better credit rating as Aztar’s current insurance carrier with respect to directors’ and officers’ liability insurance in an amount and scope the same as Aztar’s existing policies with respect to matters existing or occurring at or prior to the Effective Time; provided that the cost thereof does not exceed $4,435,000.
(c) From and after the Effective Time, Pinnacle agrees to cause the Surviving Corporation to indemnify and hold harmless each present or former director and officer of Aztar or any of its subsidiaries (in each case, for acts or failures to act in such capacity), determined as of the date hereof, and any person who becomes such a director or officer between the date hereof and the Effective Time (collectively, the “Aztar Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Company or Parent Effective Time (on behalf including any matters arising in connection with the transactions contemplated by this Agreement), to the fullest extent permitted by applicable law (and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under applicable law, provided that if required by applicable law the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification).
(d) The obligations of the Surviving Corporation) Corporation under this Section 5.06 shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and not be terminated or modified by such parties in a manner so as to adversely affect any Aztar Indemnified Party or any other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior person entitled to the Effective Timebenefit of Sections 5.06(a) and (b), except that as the Company case may not commit or spend on such “tail” policies annual premiums in excess of 300% be, to whom this Section 5.06 applies without the consent of the annual premiums paid by affected Aztar Indemnified Party or such other person, as the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amountcase may be. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause If the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) shall consolidate with or merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any Person individual, corporation or other entity, then, and in each such case, Parent proper provisions shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Corporation, as the case may be, shall assume all of the obligations set forth in this Section 5.45.06.
(e) The provisions of Section 5.06 are (i) intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and
(ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Without limiting the other provisions of this Section 5.04, Parent and Merger Sub agree that agrees (i) that, to the fullest extent permitted under applicable law, all rights to indemnification, exculpation, and 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 and officers officers, and the fiduciaries currently indemnified under benefit plans of the Company and its subsidiaries, as provided in the Company Organizational Documentstheir respective certificate or articles of incorporation, employment agreementsby-laws (or comparable organizational documents) or other agreements providing indemnification, advancement or elsewhere for acts or omissions occurring prior to the Effective Timeexculpation, including in respect of shall survive the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of in accordance with their terms, (ii) that Parent shall cause Surviving Corporation to honor all such rights and (iii) that for six (6) years from and after the Effective Time Time, no such provision in any certificate or articles of incorporation, by-laws, certificate of formation, limited liability company agreement (or comparable organizational document) or other agreement shall be amended, modified or repealed in any manner that would adversely affect the expiration of the applicable statute of limitations rights or protections thereunder to any such individual with respect to any such claims against acts or omissions occurring at or prior to the Effective Time. From and after the Effective Time, Parent shall cause the Surviving Corporation and their subsidiaries to assume all indemnification agreements in effect as of the date of this Agreement with directors or officers of the Company arising out of such acts or omissionsand its subsidiaries and to otherwise honor and perform, except as otherwise required by applicable Lawin accordance with their respective terms.
(b) For six (6) years from and after the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain or obtain directors’ and officers’ liability (and fiduciary) insurance policies (which policies by its express terms shall survive the Merger) covering acts or omissions occurring on or prior to the Effective Time of the Merger with respect to those persons who are currently covered by the Company’s respective directors’ and officers’ liability (and fiduciary) insurance policies on terms with respect to such coverage and in amounts no less favorable to the Company Indemnified Parties than those set forth in the relevant policy in effect on the date of this Agreement; provided, that the annual cost thereof shall not exceed 250% of the annual cost of such policies as of the date hereof. If such insurance coverage cannot be maintained for such cost, Parent shall maintain the most advantageous policies of directors’ and officers’ insurance otherwise obtainable for such cost. Prior to the Effective Time, the Company may purchase a six-year “tail” prepaid policy on terms and conditions no less favorable to the Company Indemnified Parties than the existing directors’ and officers’ liability (and fiduciary) insurance maintained by the Company, covering without limitation the transactions contemplated hereby; provided, that the aggregate cost thereof shall not exceed 250% of the annual cost of the directors’ and officers’ liability (and fiduciary) insurance maintained by the Company as of the date hereof. If such “tail” prepaid policy has been obtained by the Company prior to the Effective Time, it shall satisfy the obligations set forth in the first two sentences of this paragraph (b).
(c) For six (6) years from and after the Effective Time, Parent shall, and shall cause the Surviving Corporation toto indemnify and hold harmless each present and former director, maintain officers’ officer and directors’ liability fiduciaries indemnified under benefit plans of the Company or any of its subsidiaries (in each case, for acts or failures to act in such capacity), and fiduciary liability insurance in respect of actsany person who becomes such a director or officer, errors or omissions occurring on or before between the date hereof and the Effective TimeTime (collectively, the “Company Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees, costs and expenses and experts’ fees, travel expenses, court costs, retainers, transcript fees, legal research, duplicating, printing and binding costs, as well as telecommunications, postage and courier charges), judgments, fines, losses, claims, amounts paid in respect settlement, penalties, damages or liabilities incurred in connection with any claim, action, suit, proceeding, hearing or investigation, whether civil, criminal, administrative or investigative, arising out of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect or relating to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, matters existing or occurring at or prior to the Effective Time, the Company whether or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentionsnot threatened, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising asserted or claimed prior to, at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to after the Effective Time (including any matters arising in connection with respect the transactions contemplated by this Agreement), to the procurement of such “tail” policiesfullest extent permitted by applicable law (and the Surviving Corporation shall, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to, also advance expenses (including reasonable attorneys’ fees, costs and expenses and experts’ fees, travel expenses, court costs, retainers, transcript fees, legal research, duplicating, printing and binding costs, as well as telecommunications, postage and courier charges) to maintain such policies persons as incurred to the fullest extent permitted under applicable law; provided, the person to whom expenses are advanced provides a written undertaking to repay such advances if it is ultimately determined by a court of competent jurisdiction that such person is not entitled to indemnification. Neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in full force any claim, action, suit, proceeding, hearing or investigation for which indemnification could be sought by a Company Indemnified Party pursuant to this Section 5.04(c), unless (i) such settlement, compromise or consent includes an unconditional release of such Company Indemnified Party from all liability arising out of such claim, action, suit, proceeding, hearing or investigation, (ii) such settlement, compromise or consent is solely for monetary damages for which Parent or the Surviving Corporation has indemnified fully the Company Indemnified Party or (iii) such Company Indemnified Party otherwise consents in writing (such consent not to be unreasonably withheld, conditions or delayed) to such settlement, compromise or consent. Parent and effect the Surviving Corporation shall cooperate with an Indemnified Person in the defense of any matter for their full term, and continue to honor the obligations thereunderwhich such Indemnified Person could seek indemnification hereunder.
(cd) In The obligations of Parent, the event Surviving Corporation under this Section 5.04 shall not be terminated or modified by such parties in a manner so as to adversely affect any Company Indemnified Party, or any other person entitled to any benefits of this Section 5.04 without the prior written consent of the affected Company Indemnified Party, or such other person, as the case may be.
(e) The provisions of this Section 5.04 are (i) intended to be for the benefit of, and, from and after the Effective Time, will be enforceable by, each of the Company Indemnified Parties and (ii) in addition to, and not in substitution for or in limitation of, any other rights to indemnification, advancement of expenses, exculpation or contribution that any such person may have by contract or otherwise.
(f) If any of Parent, the Surviving Corporation or any of its their respective successors or assigns shall (i) consolidate consolidates with or merge mergers with or into any other Person person and shall not be the continuing or surviving corporation company, partnership or entity other person of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person merger, then, and in each such case, Parent proper arrangements shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Corporation, as applicable, assume the obligations set forth in this Section 5.45.04.
Appears in 1 contract
Samples: Merger Agreement (Finisar Corp)
Indemnification, Exculpation and Insurance. (a) Parent Beta, Merger Sub Inc. and Merger Sub LLC agree that all rights to indemnification, exculpation, and advancement of expenses indemnification existing in favor of the current or former directors and officers of the Company Omega as provided in the Company Organizational Documents, employment agreements, Omega Charter or elsewhere the Omega Bylaws as in effect on the date of this Agreement for acts or omissions occurring prior to the First Merger Effective Time, including in respect of the Merger Transactions, Time shall be assumed and performed by the Surviving Corporation or the Surviving Company and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against such directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after Prior to the First Merger Effective Time, Parent shall, each of Beta and Omega shall cause the Surviving Corporation to, maintain use reasonable best efforts to purchase a “tail” directors’ and officers’ and directors’ liability and fiduciary liability insurance policy with coverage and amounts containing terms and conditions that are substantially equivalent to and in respect of acts, errors or omissions occurring on or before any event not less favorable to the Effective Time, including insured Persons in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms aggregate with respect to coverage claims arising out of or relating to events that occurred before or at the First Merger Effective Time (including in connection with the negotiation and amount no less favorable than those execution of such policies in effect on this Agreement and the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporationtransactions contemplated by this Agreement) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by Omega or Beta, as applicable, if the Company with respect to matters arising at or prior to the Effective Time, except that the Company may cost thereof does not commit or spend on such “tail” policies annual premiums in excess of exceed 300% of the last annual premiums premium paid by the Company in its last full fiscal year prior to the date hereof Omega or Beta, as applicable, for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (maintained by Omega or Beta, as applicable, before the “Base Amount”)date of this Agreement; provided, and that if Omega or Beta is unable to so acquire such premiums for such a “tail” policy then Beta shall cause the Surviving Company to maintain in effect for at least six years after the First Merger Effective Time the current policies would exceed of directors’ and officers’ liability insurance maintained by Omega or Beta, as applicable, or policies with coverage and amounts containing terms and conditions that are no less advantageous to the insured Persons with respect to claims arising out of or relating to events that occurred before or at the First Merger Effective Time (including in connection with the negotiation and execution of this Agreement and the transactions contemplated by this Agreement) so long as Beta or the Surviving Company are not required to pay an aggregate premium in excess of 300% of the Base Amountlast annual premium paid by Beta for such insurance before the date of this Agreement (such 300% amount being the “Maximum Premium”). If Omega or Beta, as applicable, is unable to obtain the “tail” policy and Beta or the Surviving Company are unable to obtain the insurance described in the prior sentence for an amount less than or equal to the Maximum Premium, then Beta shall cause the Surviving Company shall purchase policies that provide the maximum coverage available at to instead obtain as much comparable insurance as possible for an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderMaximum Premium.
(c) In The provisions of this Section 5.8 shall survive consummation of the event that Parent, Mergers and are intended to be for the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person thenbenefit of, and in will be enforceable by, each such caseindemnified party, Parent shall cause proper provision to be made so that the successor his or her heirs and assign of Parent his or the Surviving Corporation assumes the obligations set forth in this Section 5.4her legal representatives.
Appears in 1 contract
Samples: Merger Agreement (BioScrip, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that, and Merger Sub agree that shall cause the Surviving Corporation to assume the obligations associated with, all rights to indemnification, exculpation, and advancement of expenses existing in favor of the current individuals who on or former prior to the Effective Time were directors and or officers of the Company or any of its Subsidiaries (collectively, the “Indemnitees”) to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time as provided in the respective certificate of incorporation or bylaws (or comparable organizational documents) of the Company Organizational Documentsor any of its Subsidiaries as of the date of this Agreement, employment agreementsand any indemnification agreements or arrangements of the Company or any of its Subsidiaries set forth on Schedule 5.14(a), shall survive the Merger and shall continue in full force and effect in accordance with their terms. Such rights shall not be amended or elsewhere for otherwise modified in any manner that would adversely affect the rights of the Indemnitees; provided, however, that the Surviving Corporation shall have no obligation to provide such indemnification to the extent that such indemnification is prohibited under applicable Law.
(b) Parent, from and after the Effective Time, shall cause (i) the certificate of incorporation of the Surviving Corporation to contain provisions no less favorable to the Indemnitees with respect to limitation of certain liabilities of directors, officers, employees and agents and indemnification than are set forth as of the date of this Agreement in the Company Charter Documents and (ii) the certificate of incorporation and bylaws (or similar organizational documents) of each Subsidiary of the Surviving Corporation to contain the current provisions regarding indemnification of directors, officers, employees and agents which provisions in each case shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees.
(c) For the six-year period commencing immediately after the Effective Time, the Surviving Corporation shall maintain in effect the Company’s current directors’ and officers’ liability insurance covering acts or omissions occurring prior to the Effective TimeTime with respect to those persons who are currently covered by the Company’s directors’ and officers’ liability insurance policy on terms with respect to such coverage and amount no less favorable to the Company’s directors and officers currently covered by such insurance than those of such policy in effect on the date hereof; provided, including in respect of however, that, if the Merger TransactionsCompany’s current directors’ and officers’ liability insurance expires, is terminated or is cancelled, Parent shall, or shall be assumed and performed by cause the Surviving Corporation to, obtain directors’ and shall continue in full force and effect until the later of six years after the Effective Time officers’ liability insurance covering such acts or the expiration of the applicable statute of limitations omissions with respect to any each such claims against person on terms with respect to such coverage and amount no less favorable to the Company’s directors and officers currently covered by such insurance than those of such policy in effect immediately prior to the date of such expiration, termination or officers cancellation; provided, further, however, that in no event shall the Surviving Corporation be required to expend per annum of coverage in excess of 150% of the annual premium currently paid by the Company arising out for such coverage (or such coverage as is available for 150% of such acts or omissionsannual premium). Alternatively, except as otherwise required by applicable Law.
(b) For with the consent of Parent, which consent shall not be unreasonably withheld, the Company may purchase “tail” insurance coverage covering a period of six (6) years after the Effective Time, Parent shallat a cost no greater than that set forth in the preceding sentence, that provides coverage identical in all material respects to the coverage described above.
(d) The provisions of this Section 5.14 are intended to be for the benefit of, and shall cause the Surviving Corporation be enforceable by, each Indemnitee, his or her heirs and his or her representatives and are in addition to, maintain officers’ and directors’ liability and fiduciary liability insurance not in respect of actssubstitution for, errors any other rights to indemnification or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each contribution that any such person currently covered may have by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at contract or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderotherwise.
(ce) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person Person, then, and in each such case, Parent shall cause proper provision to shall be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes shall assume all of the obligations thereof set forth in this Section 5.45.14.
Appears in 1 contract
Samples: Merger Agreement (Digimarc Corp)
Indemnification, Exculpation and Insurance. (a) The Amended Parent Company Bylaws, Amended MSHA Bylaws and Merger Sub agree that all rights to indemnification, exculpation, Amended Wellmont Bylaws shall include the fullest indemnification and advancement of expenses existing in favor exculpation of the current and former directors, officers, and board committee members of each organization or former directors and officers who served at the request of any of them as a director or officer of another Person (the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring “Indemnified Parties”) that is allowable under Tennessee law both with respect to service prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed Time and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers service following the Effective Time. Such Bylaws shall also provide for advancement of the costs of defense upon a finding by the Parent Company arising out Board of Directors that the individual seeking advancement of such acts or omissions, except as otherwise required by costs met the standard of conduct for indemnification and upon the individual providing a written undertaking to repay the advanced amounts in the event that the Parent Company Board of Directors ultimately determines that the individual was not entitled to indemnification under applicable LawTennessee law.
(b) For a period of six (6) years from and after the Effective Time, Parent shall, and Company shall either cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies be maintained in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ ' and officers’ ' liability insurance and fiduciary liability insurance maintained by MSHA and Wellmont or provide substitute policies for the Company with respect to matters arising at or prior to and its current and former directors and officers who are currently covered by the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid directors' and officers' and fiduciary liability insurance coverage currently maintained by the Company in its last full fiscal year prior either case, of not less than the existing coverage and having other terms not less favorable to the date hereof for insured persons than the Company’s current policies of directors’ ' and officers’ ' liability insurance and fiduciary liability insurance coverage currently maintained by MSHA and Wellmont with respect to claims arising from facts or events that occurred on or before the Effective Time (with insurance carriers having at least an "A" rating by A.M. Best with respect to directors' and officers' liability insurance and fiduciary liability insurance), except that in no event shall Parent Company be required to pay with respect to such insurance policies in respect of any one policy year more than 250% of the aggregate annual premium most recently collectively paid by MSHA and Wellmont prior to the date of this Agreement (the “Base "Maximum Amount”"), and if Parent Company is unable to obtain the insurance required by this Section 2.06(b) it shall obtain as much comparable insurance as possible for the years within such premiums six-year period for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% the Maximum Amount, in respect of the Base Amounteach policy year within such period. The Company shall in good faith cooperate with Parent In lieu of such insurance, prior to the Effective Time Date Parent Company may, at its option, purchase a "tail" directors' and officers' liability insurance policy and fiduciary liability insurance policy for the MSHA, Wellmont and their current and former directors and officers who are currently covered by the directors' and officers' and fiduciary liability insurance coverage currently maintained by MSHA and Wellmont, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors' and officers' liability insurance and fiduciary liability insurance coverage currently maintained by MSHA and Wellmont with respect to claims arising from facts or events that occurred on or before the procurement Effective Time; provided that in no event shall the cost of any such “tail” policiestail policy in respect of any one policy year exceed the Maximum Amount. In the event Parent Company purchases such tail coverage, subject Parent Company shall cease to such policy being fully prepaid, including with respect to have any obligations under the selection first sentence of the broker, available policy price and coverage optionsthis Section 2.06(b). Parent Company shall cause the Surviving Corporation to maintain such policies in full force and effect for their full termeffect, and continue to honor the obligations thereunder.
(c) In the event that ParentParent Company, the Surviving Corporation MSHA or Wellmont or any of its their successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person Person, then, and in each such case, Parent Company, MSHA or Wellmont, as applicable, shall cause proper provision to be made so that the successor successors and assign assigns of Parent Company, MSHA or the Surviving Corporation assumes Wellmont, as applicable, assume the obligations set forth in this Section 5.42.06.
(d) For a period of six years from and after the Effective Time, each of Parent Company, MSHA and Wellmont shall maintain in effect the provisions in its articles of incorporation and bylaws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Indemnified Party as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in its articles of incorporation and bylaws in effect as of the Effective Time, which provisions shall not be amended during such time except as required by applicable law or except to make changes permitted by applicable law that would enlarge the scope of the Indemnified Parties' indemnification rights thereunder.
(e) The provisions of this Section 2.06 shall survive the consummation of the transactions contemplated by this Agreement, (ii) are intended to be for the benefit of, and will be enforceable by, each of the Indemnified Parties, his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Master Affiliation Agreement
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that following the Effective Time, Parent shall, and shall cause the Surviving Company to, fulfill and honor in all respects all rights to indemnification, exculpation, and advancement of expenses existing in favor of the current or former directors and officers of the Company (each “Indemnified Party”) as provided in the Company Organizational DocumentsDocuments or any indemnification agreements of the Company or its Subsidiaries set forth in Schedule 5.5(a) of the Company Disclosure Schedules in effect prior to the date of this Agreement for acts, employment agreements, or elsewhere for acts errors or omissions occurring on or prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and such rights shall continue in full force and effect until the later of six years from and after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company any Indemnified Party arising out of such acts acts, errors or omissions; provided, except that all rights to indemnification, exculpation and advancement of expenses in respect of any claim asserted or made, and for which an Indemnified Party delivers a written notice to Parent within such six year period asserting a claim for such protections pursuant to this Section 5.5, shall continue until the final disposition of such claim. The rights to indemnification, exculpation, and advancement of expenses as provided in the Company Organizational Documents or any Contract of the Company or its Subsidiaries shall not be amended, repealed or otherwise modified from and after the Effective Time in any manner that would adversely affect the rights thereunder of any Indemnified Party unless such modification is required by applicable Law.
(b) For six (6) years from and after the Effective Time, Parent shall, and shall cause the Surviving Corporation Company to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on prior to the date hereofEffective Time. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof Effective Time for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policiesshall, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation Company to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation Company or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation Company assumes the obligations set forth in this Section 5.45.5.
(d) This Section 5.5 shall survive the Effective Time and shall continue for the periods specified herein and is intended to benefit the Indemnified Parties, each of whom may enforce the provisions of this Section 5.5 (whether or not parties to this Agreement). Each of the Persons referenced in the immediately preceding sentence are intended to be third party beneficiaries of this Section 5.5.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree agrees that all rights to indemnification, exculpation, indemnification and advancement of expenses 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 and or officers of the Company Target and its subsidiaries as provided in their respective articles of organization or by-laws (or comparable organizational documents) and any indemnification agreements of Target (as each is in effect on the Company Organizational Documentsdate hereof), employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect existence of the Merger Transactionswhich does not constitute a breach of this Agreement, shall be assumed and performed by the Surviving Corporation in the Merger, without further action, as of the Effective Time and shall survive the Merger and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations in accordance with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after the Effective Time, Parent shalltheir terms, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain honor all such policies in full force and effect for their full term, and continue to honor the obligations thereunderrights.
(cb) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person person, or otherwise dissolves the Surviving Corporation, then, and in each such case, Parent shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes assume the obligations set forth in this Section 5.45.06.
(c) The Surviving Corporation shall, at its option, either (i) maintain for a period of not less than six years after the Effective Time, Target's current directors' and officers' liability insurance covering acts or omissions occurring prior to the Effective Time ("D&O Insurance") with respect to those persons who are currently covered by Target's directors' and officers' liability insurance policy on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereof or (ii) cause to be provided coverage no less favorable to such directors or officers, as the case may be, than the D&O Insurance, in each case so long as the annual premium therefor would not be in excess of 150% of the last annual premium paid for the D&O Insurance prior to the date of this Agreement (such 150% amount the "Maximum Premium"
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Prior to the Closing, Parent and Merger Sub agree that all rights to indemnification, exculpation, and advancement of expenses existing in favor of the current or former directors and officers of the Company as provided shall use its reasonable best efforts to purchase a “tail” or “runoff” officers’ and directors’ liability insurance policy in the Company Organizational Documents, employment agreements, or elsewhere for respect of acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies policy on terms with respect to coverage coverage, deductibles and amount amounts no less favorable than those of such policies policy in effect on the date hereof. The provisions of this Agreement for the immediately preceding sentence shall be deemed six year period following Effective Time and at a price not to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of exceed 300% of the annual premiums paid by amount per annum the Company paid in its last full fiscal year prior to the date hereof for of this Agreement, which amount is set forth on Section 6.06(a) of the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance Company Disclosure Letter (the “Base AmountCurrent Premium”), and if such premiums for such . If the Company or Parent obtains prepaid “tail” or “runoff” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time in accordance with respect to this Section 6.06(a), the procurement of such “tail” policiesSurviving Corporation shall, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to to, maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder. If the Company fails to purchase such “tail” or “runoff” policy prior to the Closing, then either (i) Parent may purchase such “tail” or “runoff” policy on behalf of the Company or the Surviving Corporation or (ii) the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain an officers’ and directors’ liability insurance policy in respect of acts or omissions occurring prior to the Effective Time covering each such person currently covered by the Company’s officers’ and directors’ liability insurance policy on terms with respect to coverage and amount no less favorable than those of such policy in effect as of the date of this Agreement for a period of six years after the Effective Time; provided further, that in satisfying its obligation under this Section 6.06(a)(ii), neither Parent nor the Surviving Corporation shall be obligated to pay annual premiums in excess of 300% of the Current Premium and if such premiums for such insurance would at any time exceed 300% of the Current Premium, then Parent or the Surviving Corporation shall cause to be maintained policies of insurance that, in Parent or the Surviving Corporation’s good faith judgment, provide the maximum coverage available at an annual premium equal to 300% of the Current Premium.
(b) From and after the Effective Time, Parent shall cause the Surviving Corporation to fulfill and honor in all respects the obligations of the Company and its Subsidiaries pursuant to (i) each indemnification agreement in effect between the Company or any of its Subsidiaries and any 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 “Indemnified Party”) made available to Parent; and (ii) any indemnification provision and any exculpation provision set forth in the Company Articles of Incorporation or the Company Bylaws or similar governing documents of any Subsidiary of the Company as in effect on the date of this Agreement, in each case, to the fullest extent permitted under applicable Law. From the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, the articles of incorporation and bylaws of the Surviving Corporation shall contain, and Parent shall cause the articles of incorporation and bylaws of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of each Indemnified Party than are set forth in the articles of incorporation and bylaws of the Company as in effect on the date of this Agreement.
(c) Except as otherwise required by applicable Law, from and after the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, indemnify and hold harmless, and provide advancement of expenses to, each Indemnified Party in respect of acts or omissions in their capacity as a director or officer of the Company or its Subsidiaries or as an officer, director, employee, fiduciary or agent of another enterprise if the Indemnified Party was serving in such capacity at the request of the Company or any of its Subsidiaries, in any case occurring at or prior to the Effective Time, to the fullest extent permitted by applicable Law or provided under the articles of incorporation, bylaws, any indemnification agreements and any other governing documents of the Company and its Subsidiaries in effect on the date hereof. In the event of any threatened or pending Litigation to which an Indemnified Party is, has been or becomes a party or with respect to which an Indemnified Party is, has been or becomes otherwise involved (including as a witness), arising in whole or in part out of, or pertaining in whole or in part to, the fact that Parentthe 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 an officer, director, employee, fiduciary or agent of another enterprise (including any Litigation arising out of or pertaining to matters occurring or existing or alleged to have occurred or existed, or acts or omissions occurring or alleged to have occurred, at or prior to the Effective Time, or arising out of or pertaining to this Agreement and the transactions contemplated hereby), to the fullest extent permitted by applicable Law, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, advance fees, costs and expenses (including attorney’s fees and disbursements) incurred by each Indemnified Party in connection with and prior to the final disposition of such Litigations, such fees, costs and expenses (including attorney’s fees and disbursements) to be advanced within thirty calendar days of receipt by Parent from the Indemnified Party of a request therefor, provided that such Indemnified Party provides a written affirmation of such Indemnified Party’s good faith belief that he or she has met all applicable standards of conduct applicable to indemnification and an undertaking to repay such advance if it is ultimately determined by a final non-appealable order of a court of competent jurisdiction that such Indemnified Party is not entitled to indemnification under this Section 6.06(c) or otherwise.
(d) If Parent or the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person person, then, and in each such case, Parent shall cause case proper provision to shall be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes shall assume the obligations set forth in this Section 5.46.06.
(e) Notwithstanding anything herein to the contrary, if an Indemnified Party is or has been a party to or is or has been otherwise involved (including as a witness) in any Litigation (whether arising before, at or after the Effective Time) on or prior to the sixth (6th) anniversary of the Effective Time, the provisions of this Section 6.06 shall continue in effect until the final disposition of such Litigation.
(f) The provisions of this Section 6.06 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnified Party, his or her heirs and his or her representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the articles of organization or bylaws, by Contract or otherwise.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent Each of Aztar and Merger Sub agree that Pinnacle agrees that, to the fullest extent permitted under applicable law, all rights to indemnification, exculpation, indemnification and advancement of expenses 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, officers, employees or fiduciaries under benefit plans currently indemnified of Aztar and officers of the Company its subsidiaries as provided in the Company Organizational Documentstheir respective certificate or articles of incorporation, employment agreements, by-laws (or elsewhere for acts comparable organizational documents) or omissions occurring prior to the Effective Time, including in respect of other agreements providing indemnification shall survive the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until in accordance with their terms. The certificate of incorporation and by-laws of the later Surviving Corporation shall continue to contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Aztar’s certificate of incorporation and by-laws, which provisions shall not be amended, repealed or otherwise modified for a period of six years after from the Effective Time or in any manner that would adversely affect the expiration rights thereunder of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Lawindividuals.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, shall maintain in effect the directors’ and officers’ liability (and directors’ liability and fiduciary liability fiduciary) insurance in respect of acts, errors policies covering acts or omissions occurring on or before prior to the Effective Time, including in Time with respect of the Merger Transactions, covering each such person to those persons who are currently covered by the CompanyAztar’s respective directors’ and officers’ liability (and directors’ liability and fiduciary liability fiduciary) insurance policies on terms with respect to such coverage and amount no less in amounts at least as favorable than as those of such policies set forth in the relevant policy in effect on the date hereof. The provisions of this Agreement, except in no event shall the Surviving Corporation be required to make annual premium payments in connection therewith in excess of the immediately preceding sentence amount set forth on Section 5.06(b) of the Aztar Disclosure Letter (the “Maximum Amount”), and if the Surviving Corporation is unable to obtain the insurance required by this Section 5.06(b), the Surviving Corporation shall be deemed maintain the most advantageous policies of directors’ and officers’ insurance otherwise obtainable for an annual premium equal to have been satisfied ifthe Maximum Amount. Notwithstanding the foregoing, either Pinnacle or Aztar may elect in lieu of the foregoing insurance, prior to the Effective Time, to obtain and fully pay for a policy (providing only for the Side A coverage for the Aztar Indemnified Parties (as defined in clause (c) below) with a claims period of at least six years from the Effective Time from an insurance carrier with the same or better credit rating as Aztar’s current insurance carrier with respect to directors’ and officers’ liability insurance in an amount and scope the same as Aztar’s existing policies with respect to matters existing or occurring at or prior to the Effective Time; provided that the cost thereof does not exceed $4,435,000.
(c) From and after the Effective Time, Pinnacle agrees to cause the Surviving Corporation to indemnify and hold harmless each present or former director and officer of Aztar or any of its subsidiaries (in each case, for acts or failures to act in such capacity), determined as of the date hereof, and any person who becomes such a director or officer between the date hereof and the Effective Time (collectively, the “Aztar Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Company or Parent Effective Time (on behalf including any matters arising in connection with the transactions contemplated by this Agreement), to the fullest extent permitted by applicable law (and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under applicable law, provided that if required by applicable law the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification).
(d) The obligations of the Surviving Corporation) Corporation under this Section 5.06 shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and not be terminated or modified by such parties in a manner so as to adversely affect any Aztar Indemnified Party or any other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior person entitled to the Effective Timebenefit of Sections 5.06(a) and (b), except that as the Company case may not commit or spend on such “tail” policies annual premiums in excess of 300% be, to whom this Section 5.06 applies without the consent of the annual premiums paid by affected Aztar Indemnified Party or such other person, as the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amountcase may be. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause If the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) shall consolidate with or merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any Person individual, corporation or other entity, then, and in each such case, Parent proper provisions shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Corporation, as the case may be, shall assume all of the obligations set forth in this Section 5.45.06.
(e) The provisions of Section 5.06 are (i) intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.
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Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree Lowe's agrees that all rights to indemnification, exculpation, indemnification and advancement of expenses 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 and or officers of the Company Eagle Companies as provided in the Company Organizational Documents, employment agreements, their respective Articles of Incorporation or elsewhere for acts By- laws (or omissions occurring prior to the Effective Time, including in respect of the Merger Transactionscomparable organizational documents), shall be assumed and performed by the Surviving Corporation in the Merger, without further action, as of the Effective Time and shall survive the Merger and shall continue in full force and effect until the later of six years in accordance with their terms. In addition, from and after the Effective Time or the expiration Time, directors and officers of the applicable statute of limitations with respect to any such claims against Eagle who become directors or officers of the Company arising out Surviving Corporation will be entitled to the same indemnity rights and protections as are afforded to other directors and officers of such acts or omissions, except as otherwise required by applicable Lawthe Surviving Corporation.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person Person, then, and in each such case, Parent shall cause proper provision to will be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes assume the obligations set forth in this Section 5.48.13.
(c) For six years after the Effective Time, the Surviving Corporation shall maintain in effect Eagle's current directors' and officers' liability insurance covering acts or omissions occurring prior to the Effective Time with respect to those Persons who are currently covered by Eagle's directors' and officers' liability insurance policy on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereof; PROVIDED, that the Surviving Corporation may substitute therefor policies of the Surviving Corporation or its subsidiaries containing terms with respect to coverage and amount no less favorable to such directors or officers; PROVIDED FURTHER, that if the existing or substituted directors' and officers' liability insurance expires, is terminated or canceled during such six-year period, the Surviving Corporation will obtain as much directors' and officer' liability insurance as can be obtained for the remainder of such period for a premium not in excess of 200% of the aggregate premiums paid by Eagle in 1998 on an annualized basis for such purpose and that in no event shall the Surviving Corporation be required to pay aggregate premiums for insurance under this Section 8.13(c) in excess of 200% of the aggregate premiums paid by Eagle in 1998 on an annualized basis for such purpose.
(d) The provisions of this Section 8.13 (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.
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Indemnification, Exculpation and Insurance. (a) Parent, from and after the Closing Date through the sixth anniversary of the Closing Date, shall cause (i) the Organizational Documents of Parent and Merger Sub agree that all rights its Subsidiaries (including the Surviving Corporation) to indemnification, exculpation, and advancement of expenses existing in favor of contain provisions no less favorable to the current or former directors directors, managers, officers or employees of such Person (collectively, “D&O Indemnitees”) with respect to limitation of certain liabilities, advancement of expenses and officers indemnification than are set forth as of the Company as provided date of this Agreement in the Company Organizational DocumentsDocuments of such Person, employment agreementswhich provisions in each case shall not be amended, repealed or elsewhere for otherwise modified in a manner that would adversely affect the rights thereunder of the D&O Indemnitees with respect to any acts or omissions occurring at or prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable LawClosing.
(b) For Prior to the Closing, the Company may obtain up to six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms “tail” coverage with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of its Subsidiaries’ directors’ and officers’ liability insurance policies with coverage amounts, terms and fiduciary liability insurance maintained by the Company with respect conditions substantially similar to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess those of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance policies in effect as of the date hereof and fiduciary covering each D&O Indemnitee covered by the Companies’ and its Subsidiaries’ directors’ and officers’ liability insurance (policies in effect as of the “Base Amount”)date hereof. Prior to the Closing, and if such premiums for such Parent may obtain up to six years of “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement Parent’s directors’ and officers’ liability insurance policies with coverage amounts, terms and conditions substantially similar to those of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection Parent’s directors’ and officers’ liability insurance policies in effect as of the broker, available policy price date hereof and coverage optionscovering each D&O Indemnitee covered by Parent’s directors’ and officers’ liability insurance policies in effect as of the date hereof. Parent shall maintain and shall cause the Surviving Corporation to maintain each such policies in full force “tail” policy and effect for their full term, and continue not take any action to honor adversely modify or terminate any such “tail” policy during the obligations thereunderapplicable tail period thereof.
(c) The obligations of Parent under this Section 6.2 shall not be terminated or modified in such a manner as to materially and adversely affect any D&O Indemnitee to whom this Section 6.2 applies without the consent of the affected D&O Indemnitee (it being expressly agreed that the D&O Indemnitees to whom this Section 6.2 applies shall be third party beneficiaries of this Section 6.2). The provisions of this Section 6.2 (i) are intended to be for the benefit of, and shall be enforceable by, each D&O Indemnitee, his or her heirs and his or her Representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract or otherwise.
(d) In the event that Parent, the Surviving Corporation Parent or any of its Subsidiaries (including the Surviving Corporation) or any of their respective successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger or (ii) transfer transfers all or substantially all of its properties and assets to any Person Person, then, and in each either such case, Parent shall cause proper provision use commercially reasonable efforts to be made so ensure that the successor successors and assign assigns of Parent or such Subsidiary, as the Surviving Corporation assumes case may be, shall assume, at and as of the closing of the applicable transaction referred to in this Section 6.2(d), all of the obligations set forth in this Section 5.46.2.
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Indemnification, Exculpation and Insurance. (a) Parent shall cause the Surviving Corporation to honor and Merger Sub agree that discharge all rights to indemnification, exculpation, and advancement of expenses indemnification existing in favor of the current or former directors and officers of the Company as provided in the Company Organizational DocumentsCharter, employment agreements, Company Bylaws or elsewhere in any indemnification agreement as in effect on the date hereof and set forth in Section 6.7(a) of the Company Disclosure Letter for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For a period of six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, Company to maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by effect the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance covering each director or officer currently covered by the Company’s directors’ and fiduciary officers’ liability insurance maintained by the Company with respect policy (a correct and complete copy of which has been heretofore made available to matters arising at Parent) for acts or omissions occurring prior to the Effective Time; provided, except (i) that Parent may substitute therefor policies of an insurance company the material terms and provider of which, including coverage and amount, are no less favorable in any material respect to such directors and officers than the Company’s existing policies as of the date hereof or (ii) the Company may not commit or spend on such obtain prior to the Effective Time extended reporting period coverage under its existing directors’ and officers’ liability insurance programs (to be effective as of the Effective Time)(the “tail” policies annual premiums D&O Tail”); and provided further, that in no event shall the Company pay a premium for the D&O Tail in excess of 300% of the amount of the annual premiums paid by the Company in its last full for fiscal year prior to the date hereof 2023 for the Company’s current policies of such directors’ and officers’ liability insurance (which fiscal year 2023 premiums are hereby represented and fiduciary liability insurance (warranted by the “Base Amount”Company to be as set forth in Section 6.7(b) of the Company Disclosure Letter), and if in the event that the premium for the D&O Tail exceeds such premiums for such “tail” policies would exceed 300% of the Base Amountamount, then the Company shall purchase policies that provide as much coverage under the maximum coverage available at an annual premium equal to D&O Tail as may be obtained for such 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderamount.
(c) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person Person, then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation assumes the obligations set forth in this Section 5.46.7.
(d) The provisions of this Section 6.7 shall survive consummation of the Merger and are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her legal representatives.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation and its Subsidiaries shall (and Parent shall cause the Surviving Corporation and Merger Sub agree that its Subsidiaries to) honor and fulfill in all respects all rights to indemnification, exculpation, indemnification and advancement of expenses existing in favor of the current or former directors and officers of the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere 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 each present (as of the Effective Time) and former officer, director or employee of the Company or any of its Subsidiaries (the “Indemnified Parties”) as provided in the articles of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement between such Indemnified Party and the Company or any of its Subsidiaries listed on Section 6.10(a) of the Company Disclosure Letter, in each case until the sixth (6th) anniversary of the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue not amend, repeal or otherwise modify in full force and effect until the later any manner that would adversely affect any right thereunder of any such Indemnified Party for a period of six years after the Effective Time Time. For the avoidance of doubt, notwithstanding anything contained in Section 2.5, during such six-year period, Parent and the Surviving Corporation shall include and cause to be maintained in effect in the Surviving Corporation (or any successor’s) Articles and bylaws provisions regarding elimination of liability of directors, indemnification of officers, directors and employees, and advancement of expenses to officers, directors and employees that are at least as favorable as those contained in the expiration articles of the applicable statute of limitations with respect to any such claims against directors incorporation or officers bylaws (or similar organizational documents) of the Company arising out and its Subsidiaries as of the date hereof, and during such acts six-year period, such provisions shall not be repealed, amended or omissions, amended in any manner except as otherwise required by applicable Law.
(b) For a period of six (6) years after the Effective Time, Parent shall, and shall either cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies be maintained in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries (the “Existing Policies”) or cause to be provided substitute policies or purchase or cause the Surviving Corporation to purchase a “tail policy,” in either case on the same terms and conditions as the Existing Policies from insurance carriers with respect to matters arising at or prior to comparable credit ratings, covering, without limitation, the Merger; provided, however, that after the Effective Time, except that the Company may Parent shall not commit or spend on be required to pay with respect to such “tail” insurance policies in respect of any one policy year annual premiums in excess of three hundred percent (300% %) of the current annual premiums premium paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% in respect of the Base Amountcoverage required to be obtained pursuant hereto, then the Company but in such case shall purchase policies that provide the maximum as much coverage available at an as reasonably practicable for payment of annual premium premiums equal to three hundred percent (300% %) of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policiescurrent annual premiums; provided further, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause that if the Surviving Corporation to maintain purchases a “tail policy” and the coverage thereunder costs more than three hundred percent (300%) of such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parentcurrent annual premium, the Surviving Corporation or any shall purchase the maximum amount of its successors or assigns shall coverage that can be obtained for three hundred percent (i300%) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation assumes the obligations set forth in this Section 5.4current annual premium.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The provisions of the certificate of incorporation and bylaws of Parent and Merger Sub agree that all rights with respect to indemnification, exculpation, and advancement of expenses existing in favor and exculpation of the current or present and former directors and officers of the Company as provided Parent that are presently set forth in the Company Organizational Documentscertificate of incorporation and bylaws of Parent shall not be amended, employment agreementsmodified or repealed for a period of six (6) years from the First Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or elsewhere for acts or omissions occurring prior to the First Effective Time, including in respect were officers or directors of the Merger TransactionsParent, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any unless such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise modification is required by applicable Law.
(b) For The certificate of formation and limited liability company agreement of the Surviving Company shall contain, and Parent shall cause the certificate of formation and limited liability company agreement of the Surviving Company to so contain for a period of six (6) years after from the Second Effective Time, Parent shallprovisions no less favorable with respect to indemnification, advancement of expenses and shall cause exculpation of present and former directors and officers as those presently set forth in the Surviving Corporation to, maintain officers’ certificate of incorporation and directors’ liability bylaws of Parent.
(c) From and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before after the First Effective Time, including (i) the Surviving Company shall fulfill and honor in respect all respects the obligations of the Merger Transactions, covering each such person currently covered by Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s officers’ certificate of incorporation or bylaws and directors’ liability pursuant to any indemnification agreements between the Company and fiduciary liability insurance policies on terms such D&O Indemnified Parties, with respect to coverage and amount no less favorable than those claims arising out of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, matters occurring at or prior to the First Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s certificate of incorporation and bylaws and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the First Effective Time.
(d) From and after the First Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of maintain directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company policies, with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% an effective date as of the annual premiums paid by the Company in its last full fiscal year prior Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderParent.
(ce) The provisions of this Section 7.2 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their Representatives.
(f) In the event that Parent, Parent or the Surviving Corporation Company or any of its their respective successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers all or substantially all of its properties and assets to any Person Person, then, and in each such case, Parent shall cause proper provision to shall be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Company, as the case may be, shall succeed to the obligations set forth in this Section 5.47.2. Parent shall cause the Surviving Company to perform all of the obligations of the Surviving Company under this Section 7.2.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub The parties hereto agree that all rights to indemnification, exculpation, indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses expenses) now existing in favor of the current or former directors and or officers of the Company Detective or its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other agreements of Detective as in effect on the Company Organizational Documentsdate hereof shall be maintained by Detective after the Merger, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect of and shall survive the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations in accordance with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Lawtheir terms.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation Detective or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all its properties and assets to any Person person, then, and in each such case, Parent Detective shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Detective assume the obligations set forth in this Section 5.45.14.
(c) For six years from and after the Effective Time, Detective shall maintain in effect Detective's current directors' and officers' liability insurance covering acts or omissions occurring prior to the Effective Time covering each person currently covered by Detective's directors' and officers' liability insurance policy on terms with respect to such coverage and amounts no less favorable than those of such policy in effect on the date hereof; provided that Detective may substitute therefor policies of Lynx Parent or its Affiliates or its subsidiaries containing terms with respect to coverage and amount no less favorable to such directors or officers; provided, however, that in no event shall Detective be required to pay aggregate premiums for insurance under this Section 5.14(c) in excess of 200% of the amount of the aggregate premiums paid by Detective in 1999 on an annualized basis for such purpose; provided that Detective shall nevertheless be obligated to provide such coverage as may be obtained for such 200% amount.
(d) The provisions of this Section 5.14 (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Pearson Inc)
Indemnification, Exculpation and Insurance. (a) Parent Prior to or simultaneously with the Closing, Pangiam will purchase from an insurance carrier with the same or better credit rating as Pangiam’s current insurance carrier with respect to directors’, managers’ and Merger Sub agree that all rights to indemnificationofficers’ liability insurance a prepaid insurance policy which provides “side A, exculpation, B and advancement of expenses existing in favor C directors and officers” insurance coverage for each of the current individuals who were officers, directors or former directors and officers managers of the Company as provided in the Company Organizational Documents, employment agreements, Pangiam or elsewhere for acts any of its subsidiaries at or omissions occurring prior to the Effective Time, Closing on terms no less favorable (including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to both policy limit and scope) as the policy or policy(ies) maintained by Pangiam or any such claims against directors or officers of Pangiam’s subsidiaries immediately prior to the Company arising out Closing for the benefit of such acts individuals for an aggregate period of not less than six years with respect to claims arising from acts, events or omissionsomissions that occurred at or prior to the Closing, except including with respect to the transactions contemplated by the Merger Agreement (such policies, the “D&O Tail Policies”); provided, that in no event will the aggregate cost for the D&O Tail Policies exceed 300% of Pangiam’s and its subsidiaries’ most recent annual premium allocation (the “Maximum Premium”). If the aggregate annual premiums of such insurance coverage exceed the Maximum Premium, then Pangiam will obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Premium from insurance carriers with the same or better credit ratings as otherwise required by applicable Law.
(b) For six (6) years after the Effective Time, Parent shall, Pangiam’s and shall cause the Surviving Corporation to, maintain its subsidiaries’ current insurance carriers with respect to officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by duty insurance. For a period of six years after the Company with respect to matters arising at Closing, BBAI will not, and will not permit Pangiam and its subsidiaries to, amend, repeal or prior otherwise modify any provision in Pangiam’s or any of its subsidiaries’ governing documents relating to the Effective Timeexculpation or indemnification of any officers, except directors, managers or similar functionaries (unless to provide for greater exculpation or indemnification or unless required by law), it being the intent of the parties hereto that the Company may not commit or spend on such “tail” policies annual premiums in excess current and former officers, directors and managers of 300% of the annual premiums paid by the Company in Pangiam and its last full fiscal year prior subsidiaries will continue to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject be entitled to such policy being fully prepaid, exculpation and indemnification (including with respect to advancement of expenses to the selection same extent provided for under such governing documents) to the full extent of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderlaw.
(c) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation assumes the obligations set forth in this Section 5.4.
Appears in 1 contract
Samples: Merger Agreement
Indemnification, Exculpation and Insurance. (a) Parent The Merger Agreement provides for certain indemnification and Merger Sub agree that insurance rights in favor of TCS’ current and former directors or officers, who we refer to as “indemnified parties.” Specifically, all rights to indemnification, exculpation, indemnification advance and advancement reimbursement of expenses existing in favor of provided to the current indemnified parties, under TCS’ charter, bylaws or former directors and officers of the Company as provided in the Company Organizational Documents, employment other indemnification agreements, or elsewhere for with respect to acts or omissions occurring arising prior to or at the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall will continue in full force and effect until the later of for six years after following the Effective Time. For a period commencing at the Effective Time or and ending on the expiration sixth anniversary of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, Xxxxxxx has agreed to maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with in respect to matters arising of acts or omissions occurring at or prior to the Effective TimeTime covering each person covered by TCS’ existing directors’ and officers’ liability insurance with terms, except that conditions, retentions and levels of coverage at least as favorable to the Company may insured individuals as TCS’ existing policies. However, Comtech is not commit or spend on such “tail” policies required after the Effective Time to pay annual premiums in excess of 300% of the last annual premiums paid by the Company premium for TCS’ existing policies, but in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums case will purchase as much coverage as may be purchased for such “tail” policies would exceed 300% of the Base Amountamount. If, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to following the Effective Time with respect to the procurement of such “tail” policiesTime, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, Comtech or the Surviving Corporation or any of its successors or assigns shall (i) consolidate merges into or consolidates with or merge into any other Person another entity and shall is not be the continuing or surviving corporation or entity of such consolidation transfers or merger or (ii) transfer all or conveys substantially all its properties and assets to any Person thenassets, and in each such case, Parent shall cause proper provision to will be made so that the successor and assign successors or assigns of Parent Comtech or the Surviving Corporation assumes assume the insurance and indemnification obligations set forth in this described above. Exemption from Liability under Section 5.416(b). TCS has agreed to cause any dispositions of Shares (including derivative securities with respect to Shares) resulting from the transactions contemplated by the Merger Agreement by each person who is subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to TCS to be exempt under Rule 16b-3 promulgated under the Exchange Act.
Appears in 1 contract
Samples: Offer to Purchase Agreement (Comtech Telecommunications Corp /De/)
Indemnification, Exculpation and Insurance. (a) Parent The Merger Agreement provides for certain indemnification and Merger Sub agree that insurance rights in favor of Receptos’ current and former directors or officers, who we refer to as “indemnified persons.” Specifically, all rights to indemnification, exculpation, indemnification advance and advancement reimbursement of expenses existing in favor provided to the indemnified persons, under Receptos’ certificate of the current incorporation, bylaws or former directors and officers of the Company as provided in the Company Organizational Documents, employment other indemnification agreements, or elsewhere for with respect to acts or omissions occurring arising prior to or at the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall will continue in full force and effect until the later of for six years after following the Effective Time. For a period commencing at the Effective Time or and ending on the expiration sixth anniversary of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years after the Effective Time, Parent shall, Celgene has agreed to maintain directors’ and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors acts or omissions occurring on at or before prior to the Effective Time, including in respect of the Merger Transactions, Time covering each such person currently covered by the Company’s Receptos’ existing directors’ and officers’ and directors’ liability and fiduciary liability insurance policies insurance, on terms with respect to coverage and amount amounts that are no less favorable than those of such policies the policy currently maintained by Receptos. However, Celgene is not required after the Effective Time to pay annual premiums in effect on the date hereof. The provisions excess of 300% of the immediately preceding sentence shall last annual premium for Receptos’ existing policies, but in such case will purchase as much coverage as may be deemed purchased for such amount. Receptos is permitted to have been satisfied if, at or purchase prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) Time a six-year prepaid “tail” policies policy on terms and conditions providing coverage retentions, limits and other material terms no less favorable than substantially equivalent benefits as the current policies of Receptos with respect TABLE OF CONTENTS to acts or omissions occurring at or before the Effective Time. If such a “tail” policy is obtained, Celgene will maintain the policy for its full term and will have no further obligations with respect to directors’ and officers’ liability insurance and fiduciary liability insurance maintained by under the Company with respect to matters arising at or prior to Merger Agreement. If, following the Effective Time, except that the Company may not commit Celgene or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force merges into or consolidates with another entity and effect for their full term, and continue to honor is not the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or sells substantially all its properties and assets to any Person thenassets, and in each such case, Parent shall cause proper provision to will be made so that the successor and assign successors or assigns of Parent Celgene or the Surviving Corporation assumes assume the insurance and indemnification obligations set forth described above. Exemption from Liability under Section 16(b). Receptos has agreed to take all steps as may be reasonably required to cause any dispositions of Receptos equity securities in this connection with the Merger Agreement by each director or officer of Receptos subject to Section 5.416 of the Exchange Act to be exempt under Rule 16b-3 promulgated under the Exchange Act.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all rights to indemnification, exculpation, and advancement For a period of expenses existing in favor of the current or former directors and officers of the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) years from and after the Effective Timeeffective time, Parent shallHelix, as the surviving corporation in the merger, will (and shall Forian will cause the Surviving Corporation Helix to, ) either maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by Helix or Helix’s subsidiaries or provide substitute policies for Helix and Helix’s subsidiaries and its and their respective current and former directors and officers who are currently covered by the Company directors’ and officers’ and fiduciary liability insurance coverage currently maintained by Helix or Helix’s subsidiaries, in either case, with terms (including with respect to matters coverage, limits, conditions, retentions and amounts) that are substantially equivalent to and in any event not less favorable, in the aggregate, than those of Helix’s directors’ and officers’ liability insurance and fiduciary liability insurance coverage in effect on the date of the merger agreement with respect to claims arising from facts or events that occurred at or prior to before the Effective Timeeffective time (with insurance carriers having at least the same or better rating as Helix’s current insurance carrier for such insurance policies), except that in no event will Helix, as the Company may not commit or spend on surviving corporation in the merger, be required to pay with respect to such “tail” insurance policies annual premiums in excess of 300% of the annual premiums premium most recently paid by the Company in its last full fiscal year Helix prior to the date hereof of the merger agreement (which we refer to as the maximum amount), and if Helix, as the surviving corporation in the merger, is unable to obtain the insurance required by the merger agreement, it will (and Forian will cause Helix, as the surviving corporation in the merger, to) obtain a policy with the greatest coverage available for a cost not exceeding the CompanyMaximum Amount. In lieu of such insurance, prior to the closing date of the merger, Helix may, subject Forian’s current policies of prior written consent (which consent will not be unreasonably withheld, conditioned or delayed), purchase ‘‘tail’’ directors’ and officers’ liability insurance and fiduciary liability insurance (for Helix and its current and former directors and officers who are currently covered by the “Base Amount”)directors’ and officers’ and fiduciary liability insurance coverage currently maintained by Helix, such tail insurance to provide limits not less than the existing coverage and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior have other terms not less favorable to the Effective Time insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by Helix with respect to claims arising from facts or events that occurred at or before the effective time; provided, that, in no event will the annual cost of any such tail insurance exceed the maximum amount; provided, further, that Helix’s procurement of such “‘‘tail” policies’’ policy will be deemed to satisfy in full the obligations of Helix, subject as the surviving corporation in the merger, to procure such policy being fully prepaidinsurance. Helix, including with respect to as the selection of surviving corporation in the brokermerger, available policy price will (and coverage options. Parent shall Forian will cause Helix, as the Surviving Corporation to surviving corporation in the merger, to) maintain such policies in full force and effect in accordance with the terms of the merger agreement. For a period of six (6) years from and after the effective time (which we refer to as the indemnity period), Forian 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 or officers of Helix and Helix’s subsidiaries as provided in their respective certificates of incorporation or bylaws (or comparable organizational documents) and any indemnification or other similar agreements of Helix or any of Helix’s Subsidiaries, in each case as in effect on the date of the merger agreement and the closing date of the merger, will continue in full termforce and effect in accordance with their terms (it being agreed that after the closing of the merger, such rights will be mandatory rather than permissive, if applicable). Forian will cause the certificate of incorporation, bylaws or other organizational or governing documents of Helix, as the surviving corporation in the merger, and continue its Subsidiaries to honor contain provisions with respect to indemnification, advancement of expenses and exculpation that are no less favorable to the obligations thereunder.
current or former directors, officers or employees of Helix and Helix’s subsidiaries than those set forth in the certificates of incorporation and bylaws of Helix and Helix’s subsidiaries’ (cor equivalent organizational and governing documents) as of the date of the merger agreement, which provisions thereafter until the end of the indemnity period will not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any current or former directors, officers or employees of Helix and Xxxxx’s Subsidiaries. Without limiting the foregoing, during the indemnity period, Helix, as the surviving corporation in the merger, agrees that it will indemnify and hold harmless each individual who was prior to or is as of the date of the merger agreement, or who becomes prior to the effective time, a director or officer of Helix or any of Helix’s subsidiaries or who was prior to or is as of the closing date of the merger, or who thereafter commences prior to the effective time, serving at the request of Helix or any of Helix’s Subsidiaries as a director or officer of another person or entity (which we refer to as an indemnified party), against all claims, losses, liabilities, damages, judgments, inquiries, fines and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including with respect to matters existing or occurring at or prior to the effective time (including the merger agreement and the merger and the other transactions and actions contemplated by the merger agreement)), arising out of or pertaining to the fact that the indemnified party is or was a director or officer of Helix or any Helix subsidiary or is or was serving at the request of Helix or any Helix subsidiary as a director or officer of another person or entity 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 will be subject to any limitation imposed from time to time under applicable law. In the event of any such claim, action, suit or proceeding, (x) each indemnified party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit or proceeding from Helix, as the surviving corporation in the merger, within twenty (20) Business Days of receipt by Helix, as the surviving corporation in the merger, from the indemnified party of a request therefor; provided that Parentany person to whom expenses are advanced provides an undertaking, if and only to the Surviving Corporation extent required by the DGCL or the certificate of incorporation or bylaws (or comparable organizational documents) or any such indemnification agreement or similar agreement of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be with, as the continuing or case may be, Helix, as the surviving corporation or entity of in the merger, to repay such consolidation or merger or advances if it is ultimately determined by final non-appealable adjudication that such person is not entitled to indemnification and (iiy) transfer all or substantially all its properties and assets to any Person thenHelix, as the surviving corporation in the merger, and such indemnified party will cooperate with each other in each the defense of any such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation assumes the obligations set forth in this Section 5.4matter.
Appears in 1 contract
Samples: Agreement and Plan of Merger
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all rights to indemnification, exculpation, exculpation and advancement existing as of expenses existing the date hereof in favor of the current or former directors and officers of the Company or its Subsidiaries as provided in the Company Organizational DocumentsCharter, employment agreementsCompany Bylaws, equivalent organizational documents of any Subsidiary of the Company or elsewhere in any indemnification agreement set forth on Section 6.8(a) of the Company Disclosure Letter, in each case, as in effect on the date of this Agreement for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, Time shall be assumed and performed by the Surviving Corporation (and Parent shall cause the Surviving Corporation to so assume and perform) and shall continue in full force and effect until the later for a period of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against such directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law. If, at any time prior to the sixth anniversary of the Effective Time, any such current or former director or officer delivers to the Company, its Subsidiaries, the Surviving Corporation, its Subsidiaries or Parent, as applicable, a written notice asserting a claim for indemnification under any of the provisions set forth in the preceding sentence, then the claim asserted in such notice shall survive the sixth anniversary of the Effective Time until such claim is fully and finally resolved.
(b) For a period of six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance to be maintained in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by effect the Company’s officersand its Subsidiaries’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance (or, as applicable, the substituted or extended coverage contemplated by clause (i) and fiduciary (ii) of this Section 6.8(b)) covering each Person covered by the Company’s and its Subsidiaries’ directors’ and officers’ liability insurance maintained by the Company with respect policy (a correct and complete copy of which has been heretofore made available to matters arising at Parent) for acts or omissions occurring prior to the Effective Time; provided, except that (i) Parent may substitute therefor policies of an insurance company the material terms of which, including coverage and amount, are no less favorable in any material respect to such directors and officers than the Company’s existing policies as of the date hereof or (ii) the Company may not commit obtain such extended reporting period coverage under its and its Subsidiaries’ existing insurance programs (to be effective as of the Effective Time); and provided further, that in no event shall Parent or spend on such “tail” policies the Company be required to pay annual premiums for insurance under this Section 6.8(b) in excess of 300% of the most recent annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed purpose, it being understood that Parent shall nevertheless be obligated to provide as much coverage as may be obtained for such 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderamount.
(c) In the event that If Parent, the Surviving Corporation or any of its their successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person Person, then, and in each such case, Parent shall cause to the extent necessary, proper provision to shall be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Corporation, as the case may be, shall assume the obligations set forth in this Section 5.46.8.
(d) Notwithstanding anything to the contrary contained herein, the obligations under this Section 6.8 shall not be terminated or modified in such a manner as to adversely affect any current or former director or officer of the Company or its Subsidiaries without the written consent of such Person (it being expressly agreed that such Persons shall be third party beneficiaries of this Section 6.8 and shall be entitled to enforce the covenants contained herein).
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) From and after the Effective Time until the expiration of the applicable statute of limitations, Parent and Merger Sub agree that will cause the Surviving Corporation to honor all rights to indemnification, exculpation, and advancement of expenses existing in favor and exculpation of the current each former and present director or former directors and officers officer of the Company or any Company Subsidiary (each, together with such person’s heirs, executors or administrators, a “Company Indemnified Party”) as provided in the Company Organizational DocumentsCharter or Company Bylaws (and comparable governing documents of the Company Subsidiaries) or in any Contract with the Company or any Company Subsidiary (which Contracts are set forth in Section 3.15(b)(vi) of the Company Disclosure Letter), employment agreementsin each case as in effect on the date of this Agreement, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For a period of six (6) years after from the Effective Time, Parent shall, will cause to be maintained in effect the coverage provided by the directors’ and shall cause the Surviving Corporation to, maintain officers’ liability insurance policies in effect as of the Effective Time by the Company and the Company Subsidiaries on terms and conditions not less favorable to the insured Persons than the directors’ liability and fiduciary officers’ liability insurance in coverage currently maintained by the Company with respect of actsto claims arising from facts, errors events, acts or omissions occurring that occurred on or before the Effective Time, including except that in respect no event will Parent be required to pay an annual premium for such insurance in excess of 300% of the Merger Transactions, covering each such person currently covered aggregate annual premium payable by the Company’s officers’ and directors’ liability and fiduciary liability Company for such insurance policies on terms with respect to coverage and amount no less favorable than those of such policies policy in effect on July 1, 2016 (the date hereof. The provisions “Maximum Amount”); provided, however, that if such insurance can only be obtained at an annual premium in excess of the immediately preceding sentence shall be deemed to have been satisfied ifMaximum Amount, at or prior Parent will obtain the most advantageous policy of directors’ and officers’ insurance obtainable for an annual premium equal to the Effective TimeMaximum Amount. In lieu of the foregoing, the Company or may in its discretion purchase, and Parent (on behalf of may in its discretion purchase if the Surviving Corporation) shall purchase six (6) year prepaid Company declines to do so, a “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance policy covering the six-year period from and fiduciary after the Effective Time on terms and conditions not less favorable to the insured Persons than the directors’ and officers’ liability insurance currently maintained by the Company with respect to matters claims arising at from facts, events, acts or prior to omissions that occurred on or before the Effective Time, except provided that without Parent’s consent, the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement cost of such “tail” policies, subject to such policy being fully prepaid, including with respect to will not exceed the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderMaximum Amount.
(c) In the event that Parent, the Surviving Corporation or any of its their respective successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person Person, then, and in each such case, Parent shall or the Surviving Corporation will cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes Corporation, as the case may be, assume the obligations set forth in this Section 5.46.05. The provisions of this Section 6.05 (i) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all All rights to indemnification, exculpation, indemnification and advancement of expenses exculpation from liabilities for acts or omissions occurring at or prior to the Closing Date now existing in favor of the current or former directors and or officers of the Company as provided in and Company Subsidiaries shall survive the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation transactions contemplated hereby and shall continue in full force and effect until the later in accordance with their terms, and shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time Closing Date in any manner that would adversely affect the rights thereunder of such individuals for acts or omissions occurring at or prior to the expiration of Closing Date. Following the applicable statute of limitations Closing, with respect to all claims that are covered by Seller's directors and officers' liability insurance policies against any current or former director or officer of the Company or a Company Subsidiary arising out of events prior to the Closing Date, and without duplication of any amounts otherwise due from Seller to Purchaser under this Agreement, Seller shall promptly remit to Purchaser any amounts received in respect thereof to the extent that Purchaser or any Purchaser Subsidiary (including the Company or any Company Subsidiary) has been required to pay an amount pursuant to the preceding sentence covered by such claims against insurance.
(b) Purchaser, from and after the Closing Date, shall use its reasonable best efforts directly or indirectly to cause the persons who served as directors or officers of the Company arising out on or before the Closing Date to be covered by the Company's existing directors' and officers' liability insurance policy (PROVIDED, that Purchaser may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are not less advantageous than such policy) but in no event shall any insured person be entitled under this Section 5.10 to insurance coverage more favorable than that provided to him or her in such capacities as of the date hereof with respect to acts or omissions, except omissions resulting from their service as otherwise required by applicable Law.
(b) For such prior to the Closing Date. Such insurance coverage shall commence on the Closing Date and shall be provided for a period of no less than six (6) years after the Effective TimeClosing Date; PROVIDED, Parent shallHOWEVER, and that in no event shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect Purchaser be required to expend more than one hundred fifty percent (150%) of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and current annual amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained expended by the Company with respect to matters arising at or prior to the Effective Time, except that (which the Company may represents was not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof more than $957,000 for the Company’s current policies of directors’ and officers’ liability 2002 fiscal year) to maintain or procure insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amountpursuant hereto. The Company shall in good faith cooperate with Parent prior agrees to the Effective Time with respect renew any such existing insurance or to the procurement purchase any "discovery period" insurance provided for thereunder at request of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunderPurchaser.
(c) In From and after the event that ParentClosing, Purchaser shall cause the Surviving Corporation Company and any successor thereto (including Purchaser), whether by consolidation, merger or any transfer of substantially all of its successors properties or assigns assets, to comply with its obligations under this Section 5.10. The provisions of this Section 5.10 shall (i) consolidate with or merge into any other Person survive the Closing Date and are intended to be for the benefit of, and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all its properties and assets to any Person thenenforceable by, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent or the Surviving Corporation assumes the obligations set forth person named in this Section 5.45.10 and his or her heirs and representatives.
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Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all rights to indemnification, exculpation, and advancement For a period of expenses existing in favor of the current or former directors and officers of the Company as provided in the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to the Effective Time, including in respect of the Merger Transactions, shall be assumed and performed by the Surviving Corporation and shall continue in full force and effect until the later of six years after the Effective Time or the expiration of the applicable statute of limitations with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Law.
(b) For six (6) 6 years after the Effective Time, Parent DigitalGlobe shall, and shall cause the Surviving Corporation LLC to, maintain officers’ indemnify and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring hold harmless the individuals who on or before prior to the Effective TimeTime were officers, including in respect directors and employees of GeoEye or the Merger TransactionsGeoEye Subsidiaries or were serving at the request of GeoEye as an officer, covering each such person currently covered by director or employee of any other corporation, partnership or joint venture, trust, employee benefit plan or other enterprise (collectively, the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms “Indemnitees”) with respect to coverage and amount no less favorable than those all acts or omissions by them in their capacities as such or taken at the request of such policies GeoEye or any of the GeoEye Subsidiaries at any time prior to the Effective Time to the extent provided under the GeoEye Charter or GeoEye By-laws in effect on the date hereofof this Agreement (including with respect to the advancement of expenses). The provisions Prior to Closing, GeoEye may, for the benefit of those Persons who are currently covered by GeoEye’s or any GeoEye Subsidiaries’ directors’ and officers’ liability insurance policies, cause coverage to be extended under such policies by obtaining a six-year “tail” policy containing terms that are at least as favorable to the immediately preceding sentence shall be deemed insureds as the terms of such current insurance coverage with respect to have been satisfied if, claims existing or occurring at or prior to the Closing; provided, however, that the annualized premiums for such policy shall not be in excess of 200% of the last annual premium paid by GeoEye prior to the date hereof in respect of the coverages obtained pursuant hereto, but in such case GeoEye may purchase as much coverage as reasonably practicable for such amount. From and after the Closing, DigitalGlobe shall, or shall cause the Surviving LLC to, cause such “tail” policy to remain in full force and effect and shall not cause or permit any of its Affiliates to amend, waive, modify or otherwise alter the terms thereunder. To the extent any claim is asserted or made within such six-year period, such “tail” policy shall be continued in respect of such claim until the final disposition thereof. To the extent GeoEye does not obtain such a “tail” policy prior to the Closing, for a period of 6 years after the Effective Time, the Company DigitalGlobe shall, or Parent (on behalf of shall cause the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentionsLLC to, limits and other material terms no less favorable than cause to be maintained in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by GeoEye (provided that DigitalGlobe or the Company Surviving LLC, as the case may be, may substitute therefor policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions which are no less advantageous to the insured) with respect to matters claims arising from facts or events which occurred at or prior to before the Effective Time; provided, however, that, after the Effective Time, except that neither DigitalGlobe nor the Company Surviving LLC, as the case may not commit or spend on such “tail” policies be, shall be required to pay annual premiums in excess of 300200% of the last annual premiums premium paid by the Company in its last full fiscal year GeoEye prior to the date hereof in respect of the coverages required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”)such amount. DigitalGlobe shall, and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies LLC to, honor all indemnification agreements with the Indemnitees (including under the GeoEye By-laws) in full force and effect for their full term, and continue to honor as of the obligations thereunderdate of this Agreement in accordance with the terms thereof.
(cb) In the event that Parent, the Surviving Corporation DigitalGlobe or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all its properties and assets to any Person Person, then, and in each such case, Parent DigitalGlobe shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes DigitalGlobe assume the obligations set forth in this Section 5.46.05.
(c) The provisions of this Section 6.05 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each Indemnitee, his or her heirs and his or her representatives and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. DigitalGlobe shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnitee in enforcing the indemnity and other obligations provided in this Section 6.05, provided that such Indemnitee is successful in enforcing any such enforcement claim.
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Samples: Merger Agreement (GeoEye, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent and Merger Sub agree that all rights to indemnification, exculpation, and advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors and or officers of the Company and its Subsidiaries as provided in their respective certificates of incorporation or bylaws (or comparable organizational documents) and any indemnification or other agreements of the Company Organizational Documents, employment agreements, or elsewhere for acts or omissions occurring prior to as in effect on the Effective Time, including in respect date of the Merger Transactions, this Agreement shall be assumed and performed 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 until the later of six years after the Effective Time or the expiration of the applicable statute of limitations in accordance with respect to any such claims against directors or officers of the Company arising out of such acts or omissions, except as otherwise required by applicable Lawtheir terms.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability and fiduciary liability insurance in respect of acts, errors or omissions occurring on or before the Effective Time, including in respect of the Merger Transactions, covering each such person currently covered by the Company’s officers’ and directors’ liability and fiduciary liability insurance policies on terms with respect to coverage and amount no less favorable than those of such policies in effect on the date hereof. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if, at or prior to the Effective Time, the Company or Parent (on behalf of the Surviving Corporation) shall purchase six (6) year prepaid “tail” policies on terms and conditions providing coverage retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to matters arising at or prior to the Effective Time, except that the Company may not commit or spend on such “tail” policies annual premiums in excess of 300% of the annual premiums paid by the Company in its last full fiscal year prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if such premiums for such “tail” policies would exceed 300% of the Base Amount, then the Company shall purchase policies that provide the maximum coverage available at an annual premium equal to 300% of the Base Amount. The Company shall in good faith cooperate with Parent prior to the Effective Time with respect to the procurement of such “tail” policies, subject to such policy being fully prepaid, including with respect to the selection of the broker, available policy price and coverage options. Parent shall cause the Surviving Corporation to maintain such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(c) In the event that Parent, the Surviving Corporation or any of its successors or assigns shall (i) consolidate consolidates with or merge merges into any other Person person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all its properties and assets to any Person person, or if Parent dissolves the Surviving Corporation then, and in each such case, Parent shall cause proper provision to be made so that the successor successors and assign assigns of Parent or the Surviving Corporation assumes to comply with the obligations of the Surviving Corporation set forth in this Section 5.45.05.
(c) For six years after the Effective Time, Parent shall maintain in effect the Company’s current directors’ and officers’ liability insurance covering each person currently covered by the Company’s directors’ and officers’ liability insurance policy for acts or omissions occurring prior to the Effective Time on terms with respect to such coverage and amounts no less favorable than those of such policy in effect on the date of this Agreement; provided that Parent may substitute therefor policies of a reputable insurance company the material terms of which, including coverage and amount, are no less favorable to such directors and officers than the insurance coverage otherwise required under this Section 5.05(c); provided, however, that in no event shall Parent be required to pay, with respect to the entire six year period following the Effective Time, premiums for insurance under this Section 5.05(c) which in the aggregate exceed 300% of the aggregate premiums paid by the Company for the period from July 3, 2004 to, and including, September 30, 2005 for such purpose (which premiums for such period are hereby represented and warranted by the Company to be $1,162,986); provided that Parent shall nevertheless be obligated to provide such coverage, with respect to the entire six year period following the Effective Time, as may be obtained for such 300% amount. For the avoidance of doubt, nothing in this Section 5.05(c) shall require Parent to make expenditures exceeding $3,488,958 in the aggregate.
(d) The provisions of this Section 5.05 (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.
(e) Parent shall cause the Surviving Corporation to comply with all its obligations under this Section 5.05.
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