Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties. (b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party. (c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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. (d) 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. (e) 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. (f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.11.
Appears in 3 contracts
Samples: Merger Agreement (PNK Entertainment, Inc.), Merger Agreement (Ameristar Casinos Inc), Merger Agreement (Pinnacle Entertainment Inc.)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the The Surviving Corporation to, shall indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes of persons currently entitled to indemnification from the Company and rights to advancement the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of expenses relating thereto now existing in favor business or with the consent of any Indemnified Party Parent) as provided in the articles their respective certificates of incorporation or bylaws by-laws (or comparable organizational documents) and the Surviving Corporation in the Merger shall assume, without further action, as of the Effective Time any indemnification agreements of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) effect as of the Company Disclosure Letter and in effect immediately prior date hereof. The Surviving Corporation shall advance expenses to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period person promptly upon receipt of six years an undertaking from the Effective Timesuch person that such expenses shall be repaid should it be ultimately determined that such person is not entitled to indemnification. In addition, Parent shall either cause to be maintained in effect the current policies of directors’ from 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% directors and officers of the last annual premium paid by the Company prior to the date hereof in respect who become directors or officers of the coverage required Surviving Corporation or any of its subsidiaries will be entitled to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 indemnification under the Surviving Corporation’s or any of its subsidiaries’ certificate of incorporation and by-laws (or comparable organizational documents), as the same may be amended from time to time in accordance with their terms and applicable law, and to all other indemnity rights and protections as are afforded to other directors and officers of the Surviving Corporation or any of its subsidiaries.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall will be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume the obligations set forth in this Section 5.115.04.
(c) For six years 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 Time with respect to those persons who are currently covered by the Company’s directors’ and officers’ liability insurance policy on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereof; 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.
(d) The provisions of this Section 5.04 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. Each indemnified party is an intended third party beneficiary
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Golden State Vintners Inc), Agreement and Plan of Merger (Golden State Vintners Inc), Merger Agreement (Golden State Vintners Inc)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from For six years after the Effective Time through the sixth anniversary of the date on which the Effective Time occursand thereafter with respect to any claims during such six year period, Parent shallNTL shall indemnify, or shall cause the Surviving Corporation to, indemnify defend and hold harmless each present (as the current or former directors and officers of the Effective Time) and former officer, director, manager or employee of the Company Partners and its Subsidiaries subsidiaries (the “each, an "Indemnified Parties”Party") against all costs or expenses (including reasonable attorneys' fees), against all claimsjudgments, fines, losses, liabilitiesclaims, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements damages or liabilities (collectively, “"Costs”), ") incurred in connection with any Actionclaim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time to the fullest extent that Partners is permitted to indemnify such persons under the laws of Bermuda and rights to advancement of Partners's bye-laws as in effect on the date hereof (and NTL shall advance expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified including expenses constituting Costs described in Section 5.11(a5.8(d)) of the Company Disclosure Letter and in effect immediately prior as incurred to the Effective Time between such Indemnified Party fullest extent permitted under applicable law. In addition, from and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before the Effective Time; provided, however, that after the Effective Time, Parent shall not directors and officers of Partners who become directors or officers of NTL or the Amalgamated Company will be required to pay with respect to such insurance policies in respect of any one policy year annual premiums in excess of 200% of the last annual premium paid by the Company prior entitled to the date hereof in respect same indemnity rights and protections as are afforded to other directors and officers of the coverage required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 CorporationNTL.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent NTL or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall will be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to NTL assume the obligations set forth in this Section 5.115.8.
(c) For six years after the Effective Time, NTL shall provide to Partners'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 Comcast Corporation'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 in no event shall NTL be required to expend more than $360,000 in the aggregate to maintain such coverage.
(d) The provisions of this Section 5.8 (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. Each Indemnified Party is hereby expressly made a third party beneficiary of the provisions in favor of the Indemnified Parties set forth in this Section 5.8. NTL will pay all reasonable Costs, including attorney's fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided for in this Section 5.8.
Appears in 2 contracts
Samples: Agreement and Plan of Amalgamation (Comcast Uk Cable Partners LTD), Amalgamation Agreement (NTL Inc /De/)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors or officers of the Company and its subsidiaries as provided in the articles their respective certificates of incorporation or bylaws by-laws (or comparable organizational documents) and any indemnification agreements or arrangements of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effecteffect in accordance with their terms. The Surviving Corporation shall pay any expenses of any indemnified person under this Section 5.7 in advance of the final disposition of any action, and proceeding or claim relating to any such act or omission to the fullest extent permitted under the DGCL upon receipt from the applicable indemnified person to whom advances are to be advanced of any undertaking to repay such advances required under the DGCL. The Surviving Corporation shall not be amended, repealed or otherwise modified cooperate in any manner that would adversely affect any right thereunder the defense of any such Indemnified Party.
(c) For a period of six years matter. In addition, from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% directors or officers of the last annual premium paid by Company who become directors or officers of the Company prior Surviving Corporation or its affiliates will be entitled to the date hereof in respect same indemnity rights and protections as are afforded to other directors and officers of the coverage required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall will be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to will assume the obligations thereof set forth in this Section 5.115.7.
(c) The provisions of this Section 5.7 (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.
(d) For six years 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 Time with respect to those persons who are currently covered by the Company's directors' and officers' liability insurance policy on terms with respect to such coverage and amount no less favorable to the Company's directors and officers currently covered by such insurance than those of such policy in effect on the date hereof; provided that the Surviving Corporation may substitute therefor policies of Parent or its subsidiaries containing terms with respect to coverage and amount no less favorable to such directors or officers; provided, further, that in no event shall the Surviving Corporation be required to pay aggregate premiums for insurance under this Section 5.7(d) in excess of 200% of the aggregate premiums paid by the Company in 2000 on an annualized basis for such purpose.
Appears in 2 contracts
Samples: Merger Agreement (Associates First Capital Corp), Merger Agreement (Citigroup Inc)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify CBI and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company Sub agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights to for advancement of expenses relating thereto expenses) now existing in favor of any Indemnified Party the current or former directors or officers of IXC or its Subsidiaries as provided in the articles their respective certificates of incorporation or bylaws by-laws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) other agreements of the Company Disclosure Letter and IXC as in effect immediately prior to on the date hereof shall be assumed by the Surviving Corporation in the Merger, without further action, as of the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effect, and shall not be amended, repealed or otherwise modified effect in any manner that would adversely affect any right thereunder of any such Indemnified Partyaccordance with their terms.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority of substantially all its properties and assets to any Personperson, then, and in each such case, CBI shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume the obligations set forth in this Section 5.115.08.
(c) For six years from and after the Effective Time, CBI shall maintain in effect IXC's current directors' and officers' liability insurance covering acts or omissions occurring prior to the Effective Time covering each person currently covered by IXC'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 CBI may substitute therefor policies of CBI 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 CBI be required to pay aggregate premiums for insurance under this Section 5.08(c) in excess of 200% of the amount of the aggregate premiums paid by IXC in 1998 on an annualized basis for such purpose; provided that CBI shall nevertheless be obligated to provide such coverage as may be obtained for such 200% amount.
(d) The provisions of this Section 5.08 (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 2 contracts
Samples: Merger Agreement (Trustees of General Electric Pension Trust), Merger Agreement (Cincinnati Bell Inc /Oh/)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. The Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company Merger Sub agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors or officers of the Company and its Subsidiaries as provided in the articles their respective certificate of incorporation or bylaws (or comparable organizational documents) and any indemnification agreements of the Company and its Subsidiaries or (as each is in any indemnification agreement (or form thereof) identified effect on the date hereof), the existence of which has been disclosed in Section 5.11(a) of the Company Disclosure Letter Letter, shall be assumed by the Parent and in effect immediately prior to the Surviving Corporation, without further action, as of the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effecteffect in accordance with their terms, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than honor all such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 Corporationrights.
(db) 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.
(e) 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.
(f) In the event that If the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Person, or otherwise dissolves the Surviving Corporation, then, and in each such case, the Parent shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.9.
(c) The Parent shall 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 Parentomissions occurring 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 by a reputable insurance company coverage no less favorable, including with respect to coverage and amount, to such directors or officers, as the case may be, shall succeed to than the obligations set forth D&O Insurance, so long as the aggregate premium therefor would not be in this Section 5.11.excess of $1.2 million (such amount the "Maximum Premium"
Appears in 2 contracts
Samples: Merger Agreement (Printcafe Software Inc), Merger Agreement (Electronics for Imaging Inc)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company Sub agree that all rights to indemnification indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors 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 articles Company as in effect on the date of this Agreement and set forth in Section 5.04 of the Company Letter shall be assumed by the Surviving Corporation in the Merger, without further action, at the Effective Time, and shall survive the Merger and shall continue in full force and effect for at least six years following the Effective Time in accordance with their terms, and Parent shall cause the Surviving Corporation to comply with and honor the foregoing obligations; provided, however, that in the event the Surviving Corporation does not have the resources to honor the foregoing obligations, Parent shall honor such obligations. For the avoidance of doubt, the applicable rights of indemnification, advancement of expenses and exculpation contemplated by this Section 5.04(a) and pursuant to the terms of any certificate of incorporation or bylaws (or comparable organizational documents) of the Company and or any of its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and as in effect immediately at or prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified impaired by any modification of such terms in any manner that would adversely affect any right thereunder amendment or restatement of any such Indemnified Partycertificate of incorporation or bylaws (or comparable organizational documents) following the Effective Time (including in connection with the filing of the Certificate of Merger).
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority of substantially all its properties and assets to any Personperson, or if Parent dissolves the Surviving Corporation then, and in each such case, Parent shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume the obligations set forth in this Section 5.115.04.
(c) The Company shall obtain, or cause to be obtained, at Parent’s expense, as of the Effective Time a “tail” insurance policy with a claims period of six 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-year period; provided that in no event shall Parent or the Surviving Corporation be required to pay or shall the Company be permitted to expend, with respect to the entire six-year period following the Effective Time, premiums for insurance under this Section 5.04(c) which in the aggregate exceed 200% of the aggregate premiums paid by the Company for the period from February 2010 to, and including, February 2011, for such purpose (which premiums for such period are hereby represented and warranted by the Company to be $479,738); 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 200% amount. For the avoidance of doubt, nothing in this Section 5.04(c) shall require Parent to make expenditures exceeding $959,476 in the aggregate. If requested by Parent, the Company shall issue a broker of record letter naming the insurance broker selected by Parent to effect such runoff coverage, and the Company shall provide all cooperation and information reasonably requested by Parent and the selected insurance broker with respect to the procurement of such runoff coverage.
(d) The provisions of this Section 5.04 (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 2 contracts
Samples: Merger Agreement (Qualcomm Inc/De), Merger Agreement (Atheros Communications Inc)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall agrees to cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and maintain in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that accordance with their terms all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any the current or former directors or officers of the Company and its Subsidiaries (collectively, the "Indemnified Party Parties") as provided in the either (x) their respective articles of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified set forth in Section 5.11(a) 4.1 of the Company Disclosure Letter and Schedule or Section 7.1 of the Company Disclosure Schedule and/or (y) the indemnification agreements in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any as of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% of the last annual premium paid by the Company prior to the date hereof set forth in respect Section 7.1 of the coverage required Company Disclosure Schedule, copies of which have been delivered to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amountParent. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At In the Company’s option, the Company may purchaseevent that, prior to the Effective Time, the Company presents to Parent a six-year prepaid, non-revocable and non-cancellable tail proposal for the purchase of a policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of for directors’ ' and officers’ liability ' insurance covering actions of directors and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company officers prior to the Effective Time, Parent shall cause agrees to consider approval of such proposal, provided that (i) the aggregate cost to be incurred by the Company in connection with the purchase of such policy to be maintained in full force does not exceed $100,000 and effect, for its full term, and cause all obligations thereunder to be honored by (ii) neither Parent nor the Surviving Corporation.
(d) Notwithstanding anything herein Corporation shall have any obligation to the contrary, if procure any Action (whether arising before, at or after such policy subsequent to the Effective Time) is instituted against any Indemnified Party on or prior to . To the sixth anniversary extent that Parent approves in writing a proposal for the purchase of directors' and officers' insurance as contemplated by the Effective Time, the provisions preceding sentence of this Section 5.11 shall continue in effect until 7.1(a), the final disposition existence of such Action.
(e) The indemnification provided for herein policy at the Effective Time shall not be deemed exclusive to constitute a violation or breach of any other rights to which an Indemnified Party is entitled, whether pursuant to Law, Contract representation or otherwise. The provisions of this warranty set forth herein.
(b) This Section 5.11 7.1 shall survive the consummation of the Merger and, notwithstanding any other provision and shall be binding on all successors and assigns of Parent and the Surviving Corporation.
(c) The provisions of this Agreement that may be to the contrary, expressly Section 7.1 are intended to benefitbe for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective his or her heirs and legal representatives.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.11.
Appears in 2 contracts
Samples: Merger Agreement (Capitol Transamerica Corp), Merger Agreement (Alleghany Corp /De)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”Subject to Section 5.10(b), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective TimePurchaser agrees that, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such ActionLaw, (A) each Indemnified Party shall be entitled all rights to indemnification, advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time and rights to advancement of expenses relating thereto (including any matter in connection with the transactions contemplated by this Agreement), now existing in favor of the current or former directors, officers or employees of Company or any of its Subsidiaries or fiduciaries of Company or any of its Subsidiaries under Company Plans (collectively, the “Indemnified Party Parties”), as provided in the articles Company Charter or Company Bylaws and as in effect as of incorporation the date hereof, shall survive the Merger and shall continue in full force and effect in accordance with their terms; provided, that nothing herein shall be construed to limit Surviving Corporation’s ability following the Closing to undertake any type of internal reorganization as it may deem desirable, including liquidating, merging or bylaws otherwise taking action with respect to any Subsidiary or Affiliate of Surviving Corporation.
(b) For a period of six years from and after the Effective Time, Surviving Corporation shall indemnify and hold harmless each Indemnified Party, and any person who becomes an Indemnified Party between the date hereof and the Effective Time, to the fullest extent permitted by the current provisions regarding indemnification of Indemnified Parties contained in the Company Charter and the Company Bylaws (or comparable organizational documents) of each of the Company and its Subsidiaries, arising out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he or she is or was a director or officer of Company, any of its Subsidiaries or in any indemnification agreement (of their respective predecessors or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately was prior to the Effective Time between serving at the request of any such party as a director, officer, employee, trustee or partner of another corporation, partnership, trust, joint venture, employee benefit plan or other entity or (ii) any matters arising in connection with the transactions contemplated by this Agreement to the fullest extent permitted by the current provisions regarding indemnification of Indemnified Parties contained in the Company Charter and the Company Bylaws (or comparable organizational documents) of each of the Company and its Subsidiaries, and Surviving Corporation shall also advance expenses as incurred in each case, upon receipt of an undertaking, from such Indemnified Party to repay such advanced expenses if it is determined by a final and nonappealable judgment of a court of competent jurisdiction that such Indemnified Party was not entitled to indemnification hereunder. In the Company or event any of its Subsidiaries shall survive the Merger and continue claim is asserted within such six-year period, all such rights in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder respect of any such Indemnified Partyclaim shall continue until disposition thereof.
(c) For a period of six years from after the Effective Time, Parent Surviving Corporation shall either cause to be maintained maintain in effect the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained covering each Person currently covered 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance policy (a correct and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy complete copy of which has been obtained by the Company heretofore made available to Purchaser) for acts or omissions occurring prior to the Effective Time; provided, Parent that in no event shall cause Surviving Corporation be required to expend annually in the aggregate an amount in excess of 300% of the amount of the aggregate premiums paid by Company for fiscal year 2010 for such purpose (which fiscal year 2010 premiums are hereby represented and warranted by Company to be as set forth in Section 5.10(c) of the Company Disclosure Letter, the “Insurance Amount”)) and, if Surviving Corporation is unable to maintain such policy (or substitute policy) as a result of this proviso, Surviving Corporation shall obtain as much comparable insurance as is available for a period of six years following the Effective Time by payment of such amount; provided, further, that (i) Surviving Corporation may substitute therefor “tail” policies 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) Surviving Corporation may request that Company obtain such extended reporting period coverage under Company’s existing insurance programs (to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by effective as of the Surviving CorporationEffective Time).
(d) 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.
(e) 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.
(f) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns shall (i) consolidates consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys transfer all or a majority of substantially all its properties and assets to any Person, then, and in each such case, Surviving Corporation shall cause proper provision shall to be made so that the successors successor and assigns assign of the Surviving Corporation or Parent, as the case may be, shall succeed to assumes the obligations set forth in this Section 5.115.10.
(e) The provisions of this Section 5.10 shall survive consummation of the Merger and the Bank 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 (Whitney Holding Corp), Merger Agreement (Hancock Holding Co)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for shall, assume the obligation obligations with respect to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities Liabilities, including advancement of expenses, for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors or officers of the Company as provided in the articles Company Certificate, the Company By-laws or any indemnification Contract between such directors or officers and the Company (in each case, as in effect on the date hereof), without further action, as of the Effective Time and such obligations shall survive the Merger and shall continue in full force and effect in accordance with their terms. Without limiting the foregoing, Parent, for a period of at least six (6) years after the Effective Time, shall cause the certificate of incorporation or bylaws and by-laws of the Surviving Corporation (or comparable organizational documentsany successor) to contain provisions no less favorable to the current or former directors or officers of the Company and its Subsidiaries or in any with respect to limitation of liabilities of directors and officers and indemnification agreement (or form thereof) identified in Section 5.11(a) than are set forth as of the date of this Agreement in the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party Certificate and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effectBy-laws, and which provisions shall not be amended, repealed or otherwise modified in any a manner that would adversely affect any right the rights thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect the current policies of directors’ directors or officers. From 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before the Effective Time; provided, however, that after the Effective Time, Parent shall not be required guarantee to pay the fullest extent permitted under applicable Law, and cause the Surviving Corporation and its Subsidiaries to honor, in accordance with respect their respective terms, each of the covenants contained in this Section 6.05.
(b) Parent shall cause the Surviving Corporation to, and the Surviving Corporation shall, to such insurance policies the fullest extent permitted under applicable Law, indemnify and hold harmless (and advance funds in respect of any one policy year annual premiums in excess of 200% each of the last annual premium paid by foregoing) each current and former director, officer or employee of the Company prior or any of its Subsidiaries, and each person who served as a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise, in each case at the request of the Company or any of its Subsidiaries, (each, together with such person’s heirs, executors or administrators, an “Indemnified Party”) against any costs or expenses (including advancing reasonable attorneys’ fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the date hereof fullest extent permitted by Law; provided, however, that, any such advancement shall be made only upon delivery to the Surviving Corporation of an undertaking, in respect a reasonable and customary form, by or on behalf of the coverage required such Indemnified Party, to repay all amounts so advanced if it shall ultimately be determined that such Indemnified Party is not entitled to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable indemnified for such amount. All such policiesamounts under this Section 6.05 or otherwise), including judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any substitute policiesactual or threatened Actions arising out of, shall be issued by carriers rated A, XII relating to or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior in connection with any action or omission occurring or alleged to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or have occurred whether before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) Notwithstanding anything herein to the contrary, if any Action (whether arising before, at or after the Effective Time) is instituted against Time (including acts or omissions in connection with such persons serving as an officer, director or other fiduciary in any entity if such service was at the request or for the benefit of the Company). In the event of any such Action, Parent and the Surviving Corporation shall cooperate with the Indemnified Party on or prior to in the sixth anniversary defense of the Effective Time, the provisions of this Section 5.11 shall continue in effect until the final disposition of any such Action.
(e) 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.
(fc) In the event that Parent or the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority substantially all of its properties and other assets to any Person, then, and in each such case, Parent shall cause proper provision shall to be made so that the successors and assigns of Parent or the Surviving Corporation or ParentCorporation, as the case may be, shall succeed to expressly assume the obligations of such party set forth in this Section 5.116.05.
(d) For six (6) years after the Effective Time, Parent shall cause the Company to 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 (A) policies of Parent or (B) a non-cancelable run-off insurance policy purchased by Parent or the Company, in each case containing terms with respect to coverage (including as coverage relates to deductibles and exclusions) and amounts no less favorable to such persons currently covered by the Company’s directors’ and officers’ liability insurance policy 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 6.05(d), the Company and Parent shall not be obligated to pay, in the aggregate, more than 250% of the annual 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 annual premium or less in the aggregate with respect to each year of coverage, Parent shall only be obligated to cause the Company to provide such coverage as may be obtained for such annual aggregate amount.
(e) The provisions of this Section 6.05 (i) are intended to be for the benefit of, and will be enforceable from and after the Acceptance 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. The Surviving Corporation shall pay all expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 6.05, except to the extent that it is ultimately determined by a Governmental Entity with valid jurisdiction that such Indemnified Party is not entitled to be indemnified pursuant to this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Agrium Inc), Merger Agreement (Uap Holding Corp)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles of incorporation person who is or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time becomes, or has been at any time prior to the date of this Agreement, a director, officer, trustee, employee, agent or fiduciary (including as a fiduciary with respect to an employee benefit plan) of the Company, any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) as provided in the Company Certificate of Incorporation, the Company Bylaws, the organizational documents of any Subsidiary of the Company or any indemnification or employment agreement or other Contract between such Indemnified Party and the Company or any of its Subsidiaries (in each case, as in effect on the date hereof or, with respect to any indemnification agreement entered into after the date hereof, to the extent the terms thereof are no more favorable in any material respect to the Indemnified Party that is the beneficiary thereof than the terms of any indemnification agreement existing on the date hereof and a true, correct and complete copy of which has been previously disclosed to Parent) shall be assumed by the Surviving Corporation at the Effective Time, survive the Merger and continue in full force and effecteffect in accordance with their terms, and shall not be amended, repealed or otherwise modified for a period of six years following the Effective Date in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(b) Without limiting Section 5.05(a) or any rights of any Indemnified Party pursuant to the Company Certificate of Incorporation, the Company Bylaws, the organizational documents of any Subsidiary of the Company or any indemnification or employment agreement or other Contract, from and after the Effective Time, in the event of any threatened or actual claim, action, suit, proceeding or investigation (a “Claim”), whether civil, criminal or administrative, in which any person who is now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any Subsidiary of the Company (or any of their respective predecessors), is or is threatened to be made a party in his or her capacity as a director or officer of the Company or a Subsidiary of the Company (or any of their respective predecessors), Parent and the Surviving Corporation shall, jointly and severally, indemnify and hold harmless, to the fullest extent permitted by Law, each such director or officer against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorney’s fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each such director or officer to the fullest extent permitted by Law upon receipt of any undertaking required by applicable Law), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim arising out of or pertaining to (i) the fact that the Indemnified Party is or was a director (including in a capacity as a member of any board committee) or officer of the Company, any of its Subsidiaries or any of their respective predecessors, or a fiduciary with respect to any employee benefit plan maintained by any of the foregoing, prior to the Effective Time or (ii) this Agreement or any of the transactions contemplated hereby, whether in any case asserted or arising before, at or after the Effective Time. Parent’s obligations under this Section 5.05(b) shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the final disposition of such Claim.
(c) For a period of six years from and after the Effective Time, Parent the Surviving Corporation shall either maintain or cause to be maintained in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained on the date hereof by the Company and its Subsidiaries or cause to be provided substitute policies or purchase or cause (the “Current Policies”); provided, however, that the Surviving Corporation to purchase a “tail policy,” may, and in either case the event of the cancellation or termination of such policies shall, substitute therefor policies with reputable and financially sound carriers providing at least the same coverage and amounts amount and containing terms and conditions that are not no less advantageous in the aggregate favorable to the Indemnified Parties than such policy with covered persons in respect of claims or events that existed or occurred at or prior to matters arising on or before the Effective TimeTime under the Current Policies; provided, further, however, that after in satisfying its obligation under this Section 5.05(c) the Effective Time, Parent Surviving Corporation shall not be required obligated to pay with respect to such for coverage for any 12-month period aggregate premiums for insurance policies in respect of any one policy year annual premiums in excess of 200300% of the last annual premium amount paid annually by the Company prior for such coverage as of the Effective Time (the “Maximum Annual Amount”), it being understood and agreed that the Surviving Corporation shall nevertheless be obligated to provide the maximum amount of coverage obtainable by payment of annual premiums equal to the date hereof in respect Maximum Annual Amount. In lieu of the coverage required to be obtained pursuant heretoforegoing insurance coverage, but in such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, Parent may direct the Company may to purchase, at or prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions prepaid (in both amount and scopeor “tail”) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by coverage no less favorable than the coverage described in the preceding sentence; provided that the Company and its Subsidiaries with shall not be required to pay any amounts in respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If of such prepaid tail policy has been obtained by the Company coverage prior to the Effective Time, 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 CorporationClosing.
(d) 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.
(e) 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.
(f) In the event that either Parent or the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantial portion of its properties and other assets to any Personperson, or if Parent dissolves the Surviving Corporation, then, and in each such case, Parent shall cause proper provision shall to be made so that the applicable successors and assigns of the Surviving Corporation or Parent, as the case may be, transferees shall succeed to to, and expressly assume the obligations set forth in this Section 5.115.05.
(e) Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.05 and the parties acknowledge and agree that Parent guarantees the payment and performance of the Surviving Corporation’s obligations pursuant to this Section 5.05.
(f) 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, 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. Notwithstanding anything herein to the contrary, if any Claim (whether arising before or after the Effective Time) is made against any Indemnified Party on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 5.05 shall continue in effect until the final disposition of such Claim.
Appears in 2 contracts
Samples: Merger Agreement (Avery Dennison Corporation), Merger Agreement (Paxar Corp)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, From and after the Closing Date until six (6) years from the Effective Time through Time, Parent shall cause the sixth anniversary Surviving Corporation to indemnify, defend and hold harmless, to the fullest extent permitted under applicable Law, the individuals who on or prior to the Closing Date were directors, officers or managers of the date 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 in some other capacity at the request of the Company or any of its Subsidiaries at any time on which or prior to the Closing Date. Parent agrees that all rights of the Indemnitees to indemnification and exculpation from liabilities for acts or omissions occurring on or prior to the Closing Date as provided in the Company Charter Documents or Subsidiary Charter Documents, as applicable, as in effect immediately prior to the Effective Time occursTime, and any indemnification agreements of the Company or any of its Subsidiaries shall survive the Closing Date and shall continue in full force and effect in accordance with their terms. Such rights shall not be amended or otherwise modified in any manner that would adversely affect the rights of the Indemnitees, unless such modification is required by Law or approved by such Indemnitees. In addition, Parent shall, or shall cause the Surviving Corporation to, indemnify pay or reimburse any expenses of any Indemnitee under this Section 7.7 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 to the extent required by applicable Law.
(b) Parent, from and hold harmless after the Closing Date, shall cause the certificate of incorporation and bylaws or comparable organizational documents of the Surviving Corporation and each present (of its Subsidiaries to contain provisions no less favorable to the Indemnitees with respect to limitation of certain liabilities of directors, officers, managers, employees and agents and indemnification than are set forth as of the Effective Time) date of this Agreement in the certificate of incorporation and former officer, director, manager or employee bylaws of the Company and its Subsidiaries Subsidiaries, as applicable.
(c) The Surviving Corporation shall have the right (but not the obligation) to control the defense of, including the investigation and any settlement or compromise of, any litigation, claim or proceeding (each, a “Claim”) relating to any acts or omissions covered under this Section 7.7 with counsel selected by the Surviving Corporation; provided, however, that the Indemnitee shall be permitted to participate in the defense of such Claim at his or her own expense.
(d) Each of the Surviving Corporation and the 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.
(e) At the Closing, Parent shall, or shall cause the Company to, obtain, maintain and fully pay for irrevocable “tail” insurance policies naming the Indemnitees as direct beneficiaries with a claims period of at least six years from the Closing Date from a insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ liability insurance with coverage comparable to the Company’s existing policies (the “Indemnified PartiesExisting Policy”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection ) with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining respect to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request thereforClosing Date; provided, however, that any Person to whom expenses are advanced provides an unsecured undertaking, if Parent and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent not be required to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of pay annual premiums for any such matterpolicy or policies in excess of 200% of the current annual premium for such existing policies. If any future annual premiums exceed 200% of the current annual premiums, then Parent and the Surviving Corporation shall be jointly and severally liable for entitled to reduce the obligation to provide indemnification amount of coverage to the Indemnified Parties.
(b) Except as may amount of coverage that can be required by applicable Law, Parent and the Company agree that all rights obtained for an annual premium equal to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% of the last current 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 Corporationpremium.
(df) 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.
(e) 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 7.7: (i) are intended to benefitbe for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective Indemnitee, his or her heirs and legal representativeshis 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.
(fg) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates or merges with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger merger; or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume all of the obligations thereof set forth in this Section 5.117.7.
(h) The obligations of the Surviving Corporation under this Section 7.7 shall not be terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 7.7 applies without the consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 7.7 applies shall be third party beneficiaries of this Section 7.7).
(i) 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, any of its Subsidiaries or any of its directors or officers, it being understood and agreed that the indemnification provided for in this Section 7.7 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Verint Systems Inc)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company PlanFrom and after the Closing Date, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or Purchaser shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”)to continue to indemnify, against all claims, losses, liabilities, damages, judgments, inquiries, fines defend and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Timehold harmless, to the fullest extent permitted under applicable Law and Law, the individuals who on or prior to the Closing Date were directors, officers or employees of the Company Charter and Company Bylaws or any of the Subsidiaries (collectively, the “Indemnitees”) with respect to all acts or omissions by them in their capacities as such or taken at the date hereof. In request of the event Company or any of the Subsidiaries at any such Action, (A) each Indemnified Party shall be entitled time prior to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, Closing Date to the fullest extent that the Company or its Subsidiaries, as the case may be, would have been permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matterLaw. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree Purchaser agrees that all rights of the Indemnitees to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party Closing Date as provided in the articles respective certificate of incorporation or bylaws (by-laws or comparable organizational documents) documents of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its the Subsidiaries as now in effect shall survive the Merger Closing Date and shall continue in full force and effecteffect in accordance with their terms. Such rights as they relate to any period prior to Closing shall not be amended, or otherwise modified in any manner that would adversely affect the rights of the Indemnitees, unless such modification is required by Law. In addition, Purchaser shall pay any expenses of any Indemnitee under this Section 8.7, 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 (i) to the extent required by applicable Law or (ii) if it is ultimately determined that such person is not entitled to indemnification.
(b) Purchaser, from and after the Closing Date, shall cause (i) the certificate of incorporation and by-laws of Purchaser 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 certificate of incorporation and by-laws of the Company and (ii) the certificate of incorporation and by-laws or comparable organizational documents of each subsidiary of Purchaser 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 any a manner that would adversely affect any right the rights thereunder of any such Indemnified Partythe Indemnitees.
(c) For Each 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 period “Claim”) relating to any acts or omissions covered under this Section 8.7 with counsel selected by the Indemnitee; provided, however, that (i) Purchaser shall be permitted to participate in the defense of six years from such Claim at its own expense and (ii) Purchaser shall not be liable for any settlement effected without its written consent, which consent shall not be unreasonably withheld or delayed.
(d) In the Effective Timeevent any Claim is asserted or made, Parent 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 or any of the Subsidiaries or any indemnification agreements or arrangements of the Company or any of the Subsidiaries, as the case may be, shall either be made by independent legal counsel mutually selected by such Indemnitee and the Purchaser.
(e) Each of Purchaser and the 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 maintained furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(f) For the six-year period commencing immediately after the Closing Date, Purchaser shall maintain in effect the current policies of directors’ and officers’ liability insurance covering acts or omissions occurring prior to the Closing Date with respect to those persons who are currently covered by the Company’s and fiduciary the Subsidiaries’ directors’ and officers’ liability insurance maintained policies (true, correct and complete copies of which have been heretofore made available to the Purchaser) on terms with respect to such coverage and amount no less favorable to the Company’s and the Subsidiaries’ directors and officers currently covered by such insurance than those of such policy in effect on the date hereof; provided, that in no event shall Purchaser be required to expend an amount per year equal to one hundred fifty percent (150%) of the current annual premiums paid 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 amounts and containing terms and conditions that are not less advantageous in the aggregate for such insurance coverage (the “Maximum Amount”) to maintain or procure such insurance coverage as required hereunder. In the Indemnified Parties than such policy with respect to matters arising on or before event that the Effective Time; provided, however, that after the Effective Time, Parent shall not be annual premiums required to pay with respect to procure or maintain such insurance policies in respect of any one policy coverage would exceed the Maximum Amount, Purchaser shall procure and maintain for such six-year annual premiums in excess of 200% 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 period as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII the Maximum Amount or higher by A.M. Best Company. At provide Sellers the Company’s option, option of paying the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 Corporationdifference.
(dg) 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.
(e) 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 8.7: (i) are intended to benefitbe for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective Indemnitee, his or her heirs and legal 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.
(fh) In the event that the Surviving Corporation or Parent Purchaser or any of their respective its successors or assigns (i) consolidates with or merges into any other Person person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger merger; or (ii) transfers or conveys all or a majority substantially all of its properties and assets Assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, Purchaser shall succeed to assume all of the obligations thereof set forth in this Section 5.118.7.
(i) The obligations of Purchaser under this Section 8.7 shall not be terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 8.7 applies without the written consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 8.7 applies shall be third party beneficiaries of this Section 8.7).
Appears in 2 contracts
Samples: Stock Purchase Agreement (United Components Inc), Stock Purchase Agreement (UCI Holdco, Inc.)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree Provident agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors or officers of UNUM or Provident and their respective subsidiaries as provided in the articles their respective certificates of incorporation or bylaws by-laws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (agreements of UNUM or form thereof) identified Provident, the existence of which does not constitute a breach of this Agreement, shall be assumed by the Surviving Corporation in Section 5.11(a) the Merger, without further action, as of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effecteffect in accordance with their terms. In addition, from and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 directors and officers of any one policy year annual premiums in excess of 200% UNUM or Provident who become directors or officers of the last annual premium paid by the Company prior Surviving Corporation will be entitled to the date hereof in respect same indemnity rights and protections as are afforded to other directors and officers of the coverage required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall will be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume the obligations set forth in this Section 5.115.08.
(c) For six years after the Effective Time, the Surviving Corporation shall maintain in effect the better of UNUM's and Provident's respective 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 either UNUM's or Provident's respective 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 officers' liability insurance as can be obtained for the remainder of such period for a premium not in excess of 150% of the higher of (x) the aggregate premiums paid by UNUM in 1998 and (y) the aggregate premiums paid by Provident in 1998, in each case 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 5.08(c) in excess of 150% of the higher of the two amounts of aggregate premiums paid by UNUM and Provident in 1998 on an annualized basis for such purpose.
(d) The provisions of this Section 5.08 (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 2 contracts
Samples: Merger Agreement (Unum Corp), Merger Agreement (Provident Companies Inc /De/)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company Sub agree that all rights to indemnification indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors or officers of the Company and its Subsidiaries as provided in the articles their respective certificates of incorporation or bylaws (or comparable organizational documents) and any indemnification or other agreements of the Company and its Subsidiaries or (in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and each case as in effect immediately on the date of this Agreement or as amended or entered into prior to the Effective Time between such Indemnified Party with the consent of Parent) shall be assumed by the Surviving Corporation in the Merger, without further action, at the Effective Time, and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effect, and shall not be amended, repealed or otherwise modified effect in any manner that would adversely affect any right thereunder of any such Indemnified Partyaccordance with their terms.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority of substantially all its properties and assets to any Personperson, or if Parent dissolves the Surviving Corporation, then, and in each such case, Parent shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume the obligations set forth in this Section 5.116.05.
(c) From the Offer Closing through the sixth (6th) anniversary of the Effective Time (such period, the "Tail Period"), 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 in no event shall Parent be required to pay in any one (1) year during the Tail Period premiums for insurance under this Section 6.05(c) that in the aggregate exceed one-hundred fifty percent (150%) of the aggregate premiums paid by the Company in 2007 for such purpose (which aggregate premiums for 2007 are hereby represented and warranted by the Company to be $215,000), it being understood that Parent shall nevertheless be obligated to provide such coverage, with respect to the entire Tail Period, as may be obtained for such one-hundred fifty percent (150%) amount; provided further that Parent may (i) substitute therefor policies of any reputable insurance company or (ii) satisfy its obligation under this Section 6.05(c) by causing the Company to obtain, on or prior to the Closing Date, prepaid (or "tail") directors' and officers' liability insurance policy at Parent's expense, in each case, 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 6.05(c).
(d) The provisions of this Section 6.05 (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 2 contracts
Samples: Merger Agreement (Bristol Myers Squibb Co), Merger Agreement (Kosan Biosciences Inc)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent Biovail shall either cause to be maintained maintain in effect the exculpation, indemnification and advancement of expenses provisions of any certificate of incorporation and by-laws or similar organization documents of each of Biovail, the Biovail Subsidiaries, Valeant and the Valeant Subsidiaries in effect immediately prior to the Effective Time and with respect to acts or omissions prior to the Effective Time or in any indemnification agreements of Biovail, the Biovail Subsidiaries, Valeant or the Valeant Subsidiaries with any of their respective directors, officers or employees in effect immediately prior to the Effective Time and with respect to acts or omissions prior to the Effective Time, and shall not amend, repeal or otherwise modify any such provisions or the exculpation, indemnification or advancement of expenses provisions of Biovail’s or the Surviving Company’s certificate of incorporation and by-laws in any manner that would adversely affect the rights thereunder of any individuals who at the Effective Time were current policies or former directors, officers or employees of Biovail, any of the Biovail Subsidiaries, Valeant or any of the Valeant Subsidiaries.
(b) For a period of six years after the Effective Time, Biovail shall indemnify and hold harmless the individuals who on or prior to the Effective Time were officers, directors and employees of Biovail or the Biovail Subsidiaries or were serving at the request of Biovail as an officer, director or employee of any other corporation, partnership or joint venture, trust, employee benefit plan or other enterprise (collectively, the “Biovail Indemnitees”) with respect to all acts or omissions by them in their capacities as such or taken at the request of Biovail or any of the Biovail Subsidiaries at any time prior to the Effective Time to the extent provided under the Biovail Charter or Biovail Bylaws in effect on the date of this Agreement (including with respect to the advancement of expenses).
(c) For a period of six years after the Effective Time, Biovail shall, and shall cause the Surviving Company to, indemnify and hold harmless the individuals who on or prior to the Effective Time were officers, directors and employees of Valeant or the Valeant Subsidiaries or were serving at the request of Valeant as an officer, director or employee of any other corporation, partnership or joint venture, trust, employee benefit plan or other enterprise (collectively, the “Valeant Indemnitees” and, together with the Biovail Indemnitees, the “Indemnitees”) with respect to all acts or omissions by them in their capacities as such or taken at the request of Valeant or any of the Valeant Subsidiaries at any time prior to the Effective Time to the extent provided under the Valeant Charter or Valeant Bylaws in effect on the date of this Agreement (including with respect to the advancement of expenses). Biovail shall, and shall cause the Surviving Company to, honor all indemnification agreements with the Indemnitees (including under the Valeant Bylaws) in effect as of the date of this Agreement in accordance with the terms thereof.
(d) For six years after the Effective Time, Biovail shall procure the provision of officers’ and directors’ liability insurance in respect of acts or omissions occurring prior to the Effective Time covering each such Person currently covered by Biovail’s officers’ and directors’ liability insurance policy on terms with respect to coverage and in amounts no less than those of the policy in effect on the date of this Agreement. In lieu of such insurance, prior to the Closing Date, Biovail may, following consultation with Valeant, purchase a “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for Biovail and its respective current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by Biovail, in which event Biovail shall cease to have any obligations under 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 first sentence of at least the same coverage and amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before the Effective Time; provided, however, that this Section 6.05(d).
(e) For six years after the Effective Time, Parent Biovail shall not be required procure the provision of officers’ and directors’ liability insurance in respect of acts or omissions occurring prior to pay the Effective Time covering each such Person currently covered by Valeant’s officers’ and directors’ liability insurance policy on terms with respect to such insurance policies coverage and in respect of any one policy year annual premiums in excess of 200% amounts no less than those of the last annual premium paid by the Company prior to policy in effect on the date hereof in respect of the coverage required to be obtained pursuant hereto, but in this Agreement. In lieu of such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchaseinsurance, prior to the Effective TimeClosing Date, Valeant may, following consultation with Biovail, purchase a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for Valeant and its 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 and its Subsidiaries with respect to matters arising on Valeant, in which event Biovail or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) Notwithstanding anything herein Company, as the case may be, shall cease to have any obligations under 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 first sentence of this Section 5.11 shall continue in effect until the final disposition of such Action.
(e) 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 representatives6.05(e).
(f) In the event that Biovail or the Surviving Corporation or Parent Company or any of their respective its successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of substantially all its properties and assets to any Person, then, and in each such case, Biovail shall cause proper provision shall to be made so that the successors and assigns of Biovail or the Surviving Corporation or ParentCompany, as the case may be, shall succeed to assume the obligations set forth in this Section 5.116.05.
(g) 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. Biovail 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.
Appears in 2 contracts
Samples: Merger Agreement (Valeant Pharmaceuticals International), Merger Agreement (BIOVAIL Corp)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing as of the date hereof in favor of any Indemnified Party as provided in the articles of incorporation person who is or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time becomes, or has been at any time prior to the date hereof, a director or officer of the Company or any of its Subsidiaries (each, an “Indemnified Party”) as provided in the Company Certificate of Incorporation, the Company Bylaws, the equivalent organizational documents of any Subsidiary of the Company which has been made available to Parent, or any indemnification agreement between such Indemnified Party and the Company or any of its Subsidiaries which has been made available to Parent, shall survive the Merger and continue in full force and effecteffect in accordance with their respective terms. For a period of six (6) years after the Effective Time, Parent shall cause the Surviving Corporation Certificate of Incorporation and the bylaws of the Surviving Corporation to contain provisions no less favorable with respect to indemnification, exculpation, limitation of liabilities and advancement of expenses with respect to present and former directors and officers of the Company and its Subsidiaries in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time than are as set forth in the Company Certificate of Incorporation or the Company Bylaws and shall not be amendedamend, repealed repeal or otherwise modified modify the Surviving Corporation Certificate of Incorporation or the bylaws of the Surviving Corporation in any manner that would adversely affect any right the rights thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before the Effective Time; providedindemnification, however, that after the Effective Time, Parent shall not be required to pay with respect to such insurance policies in respect exculpation and limitation of any one policy year annual premiums in excess of 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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 liabilities of the Indemnified Parties and their respective heirs and legal representativesadvancement of expenses.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.11.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Nimble Storage Inc)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement The articles of incorporation and the bylaws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company’s articles of incorporation and bylaws on the date hereof, which provisions shall not be amended, repealed or Company Plan, otherwise modified for a period of six years from the Effective Time through in any manner that would adversely affect the sixth anniversary rights thereunder of the date individuals who on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)were directors, whether asserted officers, employees or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) agents of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder)Company, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Partiesmodification is required by law.
(b) Except as may be required by applicable LawFor six years from the Effective Time, Parent shall maintain in effect directors’ and the Company agree that all rights to indemnification and exculpation from liabilities for officers’ liability insurance covering claims arising out of acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to which are asserted after the Effective Time between such Indemnified Party and against those persons who are currently covered by the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect the current policies of Company’s directors’ and officers’ liability insurance and fiduciary liability 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 the Company’s current 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before the Effective Timecoverage; provided, however, that after (i) in lieu of the Effective Time, Parent shall not be required to pay with respect to purchase of such insurance policies in respect of any one policy year annual premiums in excess of 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII Surviving Corporation or higher by A.M. Best Company. At the Company’s optionParent, the Company may purchase, prior to the Effective Time, purchase a six-year prepaid, non-revocable and non-cancellable extended reporting period endorsement (“reporting tail policy on terms and conditions (in both amount and scopecoverage”) providing substantially equivalent benefits as the current policies of under its existing directors’ and officers’ liability insurance coverage and fiduciary liability (ii) if the cost of such insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Timeshall exceed $250,000, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 policy to be maintained in full force and effect, date for its full termofficers and directors.
(c) The obligations of the Company, the Surviving Corporation and cause all obligations thereunder to Parent contained in this Section 5.7 shall be honored by binding on the successors and assigns of Parent and the Surviving Corporation.
(d) Notwithstanding anything herein to the contrary. If Parent, 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.
(e) 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.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Person, then, then and in each such case, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation or ParentCorporation, as the case may be, shall succeed to assume the obligations set forth in this Section 5.115.7.
Appears in 2 contracts
Samples: Merger Agreement (Venture Catalyst Inc), Merger Agreement (International Game Technology)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee current or former officer or director may have under any agreement the Company Charter or Company PlanBylaws as in effect on the date of this Agreement in their capacity as such, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shallParent, or shall cause the Surviving Corporation to, and the Surviving LLC shall indemnify and hold harmless each present current (as of immediately prior to the Effective Time) and each former officer, director, manager or employee officer and director of the Company from and its Subsidiaries against any and all loss and liability suffered and expenses (the “Indemnified Parties”including attorneys’ fees), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), amounts paid in settlement reasonably incurred by such person in connection with any Actionaction, suit or proceeding, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party indemnified Person is or was an officer, director, manager, employee, fiduciary director or agent employee of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and would have been required to do so under the Company Charter, Company Bylaws as at or DGCL (for the date hereofavoidance of doubt, subject to the limitations on the Company’s ability to indemnify its directors and officers under Section 145 of the DGCL). In the event of any such Actionaction, (A) suit or proceeding, each Indemnified Party such indemnified Person shall be entitled to advancement of expenses incurred in the defense of any Action such action, suit or proceeding from Parent or the Surviving Corporation, Corporation and the Surviving LLC to the fullest extent that the Company would be permitted to advance such expenses under the DGCL. Each of Parent, the Surviving Corporation and the Surviving LLC agrees, and Parent agrees to cause each of the Surviving Corporation and the Surviving LLC, to continue and not to repeal or modify, and agree to include, to the extent permitted by applicable Law Law, in its organizational documents provisions for the exculpation, indemnification and advancement of expenses of the current and former directors and officers of the Company as currently existing in the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from after the Effective Time, Parent shall either cause to be maintained in effect the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained covering each Person currently covered 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance policies (a correct and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy complete copy of which has been obtained by the Company heretofore made available to Parent) 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, 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 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 the Company be required to pay aggregate premiums for insurance under this Section 5.9(b) in excess of 300% of the amount of the aggregate premiums paid by the Company for policy year 2012-2013 for such purpose (which policy year 2012-2013 premiums are hereby represented and warranted by the Company to be as set forth in Section 5.9(b) of the Company Disclosure Letter), it being understood that Parent shall cause nevertheless be obligated to provide such policy coverage as may be obtained for such 300% amount.
(c) The provisions of this Section 5.9 (i) shall survive consummation of the Merger and the Second Merger and are intended to be maintained in full force and effect, for its full termthe benefit of, and cause all will be enforceable by, each indemnified Person, his or her heirs and his or her legal representatives, and each such Person shall be an intended third party beneficiary of the provisions of this Section 5.9, and (ii) are in addition to, and not in substitution for or limitation of, any other rights to indemnification or contribution that any such Person may have by Contract. Without limiting the generality of the foregoing, the obligations thereunder to be honored by of Parent, the Surviving CorporationCorporation and the Surviving LLC under this Section 5.9 shall not be terminated or modified in such a manner as to adversely affect the rights of any indemnified Person to whom this Section 5.9 applies unless such Person shall have consented thereto in writing.
(d) 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.
(e) 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.
(f) In the event that Parent, the Surviving Corporation or Parent Corporation, the Surviving LLC, or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent, the Surviving Corporation or and/or the Surviving LLC shall assume all of the obligations of Parent, the Surviving Corporation and/or the Surviving LLC, as the case may be, shall succeed to the obligations set forth in this Section 5.115.9.
Appears in 2 contracts
Samples: Merger Agreement (Schawk Inc), Merger Agreement (Matthews International Corp)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree Razorfish agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors or officers of i-Cube and its subsidiaries as provided in the articles their respective certificates of incorporation or bylaws by-laws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified agreements of i-Cube, the existence of which does not constitute a breach of this Agreement, shall be assumed by the Surviving Corporation in Section 5.11(a) the Merger, without further action, as of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effecteffect in accordance with their terms, and Razorfish shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than honor all such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 Corporationrights.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, Razorfish shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume the obligations set forth in this Section 5.115.09.
(c) For six years after the Effective Time, Razorfish shall maintain in effect i-Cube'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 i-Cube'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 Razorfish may substitute therefor policies of Razorfish or its subsidiaries; provided further, that if the existing or substituted directors' and officers' liability insurance expires, is terminated or canceled during such six-year period, Razorfish will obtain as much directors' and officers' liability insurance as can be obtained for the remainder of such period for a premium not in excess of 150% of the aggregate premiums paid by i-Cube in 1998 on an annualized basis for such purpose and that in no event shall Razorfish be required to pay aggregate premiums for insurance under this Section 5.09(c) in excess of 150% of amount of aggregate premiums paid by i-Cube in 1998 on an annualized basis for such purpose.
(d) The provisions of this Section 5.09 (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 2 contracts
Samples: Merger Agreement (Razorfish Inc), Merger Agreement (Razorfish Inc)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from From and after the Effective Time through the sixth anniversary Time, each of the date on which the Effective Time occursParent, Parent shallMerger Sub, or shall cause Merger Sub I, the Surviving Corporation to, and the Ultimate Surviving Entity agrees that it will indemnify and hold harmless harmless, to the fullest extent permitted under applicable Laws, each present (as of the Effective Time) and former officer, director, manager or employee director and officer of the Company and its Subsidiaries (the “Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), against all claimsjudgments, fines, losses, liabilitiesclaims, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), damages or liabilities incurred in connection with any Actionclaim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining related to (i) the fact that the such Indemnified Party is or was an Parties’ service as a director, officer, director, manager, employee, fiduciary employee or agent of the Company or any of its Subsidiaries or (ii) matters existing services performed by such Indemnified Parties at the request of the Company or occurring its Subsidiaries at or prior to the Second Effective Time (including this Agreement and the transactions and actions contemplated hereby)Time, whether asserted or claimed prior to, at or after the Second Effective Time, including the Mergers. Each of Parent, Merger Sub, Merger Sub I, the Surviving Corporation and the Ultimate Surviving Entity shall also pay expenses (including attorney’s fees) incurred by an Indemnified Party in advance of the final disposition of any such claim, action, suit, proceeding or investigation to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified PartiesLaws.
(b) Except as The rights of the Indemnified Parties under this Section 5.9 shall be in addition to any rights such Indemnified Parties may be required by applicable Law, Parent have under the Company Charter or the Company Bylaws and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles certificate of incorporation or bylaws and by-laws (or comparable organizational documents) of the Company each of its Subsidiaries, or under any applicable Contracts or Laws. Parent, Merger Sub and its Subsidiaries or Merger Sub I agree that all rights to indemnification, advancement of expenses and exculpation of liabilities existing in any indemnification agreement (or form thereof) identified in Section 5.11(a) favor of the Company Disclosure Letter and Indemnified Parties as in effect immediately on the date of this Agreement for acts or omissions occurring prior to the Second Effective Time between such Indemnified Party shall be assumed and performed by the Company or any of its Subsidiaries Ultimate Surviving Entity and shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified effect in any manner that would adversely affect any right thereunder of any such Indemnified Partyaccordance with their terms.
(c) For a period of six (6) years from after the Effective Time, Parent shall either cause to be maintained in effect the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained covering each Person currently covered 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance policy (a correct and fiduciary complete copy of which has been heretofore made available to Parent) 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, 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 obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective Time); provided, however, the Company may, at its election, obtain prior to the Effective Time a “tail” policy with respect to such directors’ and officers’ liability insurance maintained with policy limits, terms and conditions at least as favorable to the directors and officers covered under such insurance policy as the limits, terms and conditions in the existing policies of the Company; provided, further, however, that in no event shall Parent or the Company be required to pay annual premiums for insurance under this Section 5.9(c) in excess of 300% of the amount of the annual premiums paid by the Company for fiscal year 2014 for such purpose (which fiscal year 2014 premiums are hereby represented and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained warranted by the Company to be as set forth in Section 5.9(c) of the Company Disclosure Letter) (the aggregate amount of such annual premiums, the “Maximum Premium”), it being understood that Parent and the Company shall nevertheless be obligated to provide as much coverage as may be obtained for the Maximum Premium. Notwithstanding the preceding, the Company may at its option purchase a “tail” policy prior to the Effective Time, in which case Parent’s only obligations pursuant to this Section 5.9(c) shall be to maintain such “tail” policy in full force and effect and continue to honor the obligations thereunder and Parent shall not be otherwise required under this Section 5.9(c) to cause such policy to be maintained in full force effect the Company’s current directors’ and effectofficers’ liability insurance; provided, further, that the Company may not expend more than the Maximum Premium for its full term, and cause all obligations thereunder to be honored by the Surviving Corporationsuch “tail” policy.
(d) 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.
(e) 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.
(f) In the event that Parent, the Ultimate Surviving Corporation or Parent Entity or any of their respective its successors or assigns shall (i) consolidates consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys transfer all or a majority of substantially all its properties and assets to any Person, then, and in each such case, Parent shall cause proper provision shall to be made so that the successors successor and assigns assign of Parent or the Ultimate Surviving Corporation or Parent, as the case may be, shall succeed to Entity assumes the obligations set forth in this Section 5.115.9.
(e) The provisions of this Section 5.9 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: Agreement and Plan of Merger (Urs Corp /New/), Merger Agreement (Aecom Technology Corp)
Indemnification, Exculpation and Insurance. (a) Without limiting Parent and Merger Sub agree that all rights to exculpation, indemnification or advancement of expenses arising from, relating to or otherwise in respect of, acts or omissions occurring prior to the Effective Time now existing in favor of the current or former directors or officers of any additional rights that of the Acquired Companies as provided in their respective certificates of incorporation, bylaws or other comparable organizational documents and any employee may have under indemnification or other agreements of the Acquired Companies with any agreement of the current or Company Planformer directors or officers of any of the Acquired Companies as in effect on the date of this Agreement shall be assumed by the Surviving Corporation in the Merger, without further action, at the Effective Time, and shall survive the Merger and shall continue in full force and effect in accordance with their terms. For a period of no less than six (6) years from the Effective Time through the sixth anniversary of the date on which the Effective Time occursTime, Parent shall, or shall cause the Surviving Corporation to, and the Surviving Corporation shall, maintain in effect the exculpation, indemnification and advancement of expenses provisions of each Acquired Company’s certificate of incorporation and bylaws or other comparable organizational documents in effect as of the date of this Agreement or in any indemnification agreements of the Acquired Companies with any of their respective directors, officers or employees in effect as of the date of this Agreement, and shall not amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any individuals who immediately before the Effective Time were current or former directors, officers or employees of any of the Acquired Companies; provided, however, that all rights to exculpation, indemnification and advancement of expenses in respect of any Action pending or asserted or any claim made within such period shall continue until the final disposition of such Action.
(b) From and after the Effective Time, each of Parent and the Surviving Corporation shall, to the fullest extent that the Company would have been permitted under the Law of the State of Ohio, indemnify and hold harmless (and advance funds in respect of each present (as of the Effective Timeforegoing and costs of defense to) each current and former officer, director, manager director or employee officer of any of the Company and its Subsidiaries Acquired Companies (the each such individual, together with such individual’s heirs, executors or administrators, an “Indemnified PartiesParty”), in each case against all any losses, claims, lossesdamages, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, expenses (including attorneys’ fees and disbursements disbursements), judgments, fines and amounts paid in settlement (collectively, “CostsLosses”), incurred ) in connection with any actual or threatened Action, whether civil, criminal, administrative or investigative, arising out of of, relating to or pertaining to (i) in connection with the fact that the such Indemnified Party is or was an officer, director, manager, employee, director or fiduciary or agent of any of the Company or any of its Subsidiaries or (ii) matters existing or occurring Acquired Companies at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)Time; provided, whether asserted or claimed prior tohowever, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from that the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Timeapplicable Law, to repay such advances if it is ultimately determined by a court of competent jurisdiction that such Person Indemnified Party is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation indemnification for such expenses. No Indemnified Party shall settle, compromise or consent to the entry of any judgment in any proceeding threatened or threatened action, suit, proceeding, investigation or claim (and in actual Action for which indemnification could be sought by such an Indemnified Party hereunder), hereunder unless Parent consents in writing to such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action(which consent shall not be unreasonably withheld, suitconditioned or delayed).
(c) Parent shall, proceedingin its sole discretion, investigation either (i) provide, or claim or such Indemnified Party otherwise consents, and (C) shall cause the Surviving Corporation shall cooperate in to provide, following the defense of any such matter. Parent Effective Time, the Company’s current directors and the Surviving Corporation shall be jointly officers an insurance and severally liable for the obligation to provide indemnification to the Indemnified Parties.
policy or (bii) Except as may be required by applicable Lawobtain, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights so long as it does not result in gaps or lapses of coverage with respect to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in matters occurring prior to the articles of incorporation or bylaws Effective Time, prepaid (or comparable organizational documents“tail”) of the Company directors’ and its Subsidiaries or officers’ insurance and indemnification policies that, in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately either case, provide coverage for events occurring prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a for an aggregate period of not less than six (6) years from the Effective Time, Parent shall either cause to be maintained in effect Time (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 amounts and containing terms and conditions Continuing D&O Insurance”) that are not no less advantageous favorable in the aggregate to the Indemnified Parties than such policy (with respect to matters arising on or before limits and deductibles) to the Effective TimeCompany’s existing policy or, if such insurance coverage is unavailable, the best available similar coverage; provided, however, that after Parent and the Effective Time, Parent Surviving Corporation shall not be required to pay with respect to such insurance policies in respect of any one policy year an annual premiums premium for the Continuing D&O Insurance in excess of 200% three hundred percent (300%) of the last annual premium paid by the Company prior to the date hereof in respect of this Agreement (the coverage required to be obtained pursuant hereto, but in “Company’s Current Premium”). If such case shall purchase as much coverage as reasonably practicable premiums for such amount. All such policies, including insurance would at any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At time exceed three hundred percent (300%) of the Company’s optionCurrent Premium, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, then Parent shall cause such policy to be maintained policies of such insurance which, in full force and effectParent’s good faith determination, for its full term, and cause all obligations thereunder provide the maximum coverage available at an annual premium equal to be honored by three hundred percent (300%) of the Surviving CorporationCompany’s Current Premium.
(d) Notwithstanding anything herein to the contraryIf Parent, 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.
(e) 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.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of substantially all its properties and assets to any Personassets, then, and in each such case, proper provision shall be made so that the successors Parent and assigns of the Surviving Corporation shall ensure that such surviving corporation or Parent, as entity or the case may be, shall succeed to transferees of such properties or assets assume the obligations set forth in this Section 5.115.10.
(e) The rights of each Indemnified Party under this Section 5.10 shall be in addition to any rights such Indemnified Party may have under the certificate of incorporation or bylaws or other comparable organizational documents of any of the Acquired Companies or under any agreement of any Indemnified Party with any of the Acquired Companies, in each case in effect as of the date of this Agreement, or under applicable Law. Except as otherwise set forth herein, these rights shall survive consummation of the Merger in accordance with their terms and are intended to benefit, and shall be enforceable by, each Indemnified Party.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Infinity Property & Casualty Corp), Agreement and Plan of Merger (KEMPER Corp)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or Buyer shall cause the Surviving Corporation toCompany, and the Surviving Company hereby agrees, that for six years after the Closing, the Surviving Company shall indemnify and hold harmless each present (as of all Persons who at or prior to the Effective Time) and former officerClosing were directors, director, manager managers or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent officers of the Company or any of its Subsidiaries or (iieach, an “Indemnified Person”) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event in respect of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time Closing, and rights shall advance reasonable and reasonably documented out-of-pocket expenses to Indemnified Persons in respect of any claims, actions, suits or other Proceedings relating to any such acts or omissions, in each case to the fullest extent provided under the governing documents of the Company or its Subsidiaries, as applicable, in effect on the date hereof; provided that the Person to whom expenses are advanced provides an undertaking to repay such advances to the extent required by Applicable Law. Buyer hereby agrees that the Surviving Company is the indemnitor of first resort (i.e., its obligations to any Indemnified Person under this Agreement are primary and any obligation of any Seller or any Affiliate thereof to provide indemnification or advancement of expenses relating thereto now existing in favor of for the same matters are secondary), and if any Seller or any Affiliate thereof pays any amount otherwise indemnifiable under this Section 5.07 to any Indemnified Party Person, then such Seller or Affiliate thereof shall be subrogated to the rights of the Indemnified Person hereunder with respect to such payment, and the Surviving Company shall reimburse such Seller or Affiliate thereof for such payment.
(b) Buyer agrees that (i) the governing documents of the Surviving Company and each Subsidiary of the Surviving Company after the Closing shall contain provisions with respect to indemnification, exculpation from liability and advancement of expenses that are at least as provided favorable to the beneficiaries of such provisions as those provisions that are set forth in the articles of incorporation or bylaws (or comparable organizational documents) governing documents of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to on the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effectdate hereof, and which provisions shall not be amended, repealed or otherwise modified for a period of six years following the Closing in any manner that would adversely affect any right the rights thereunder of any Indemnified Person, except to the extent that such modification is required by Applicable Law and (ii) all rights to indemnification as provided in any indemnification agreements between the Company or any of its Subsidiaries, on the one hand, and any Indemnified PartyPerson, on the other hand, as in effect and made available to Buyer on or before the date hereof, with respect to matters occurring at or prior to the Closing shall survive the Closing in accordance with their terms.
(c) For a period of six years from At or prior to the Effective TimeClosing, Parent the Company shall either purchase or cause to be maintained purchased, at the sole cost and expense of Buyer and in effect reasonable consultation with Buyer, non-cancellable extensions of the current policies of Company’s and its Subsidiaries’ existing directors’ and officers’ liability insurance and fiduciary liability insurance maintained by policies in effect as of the Company date hereof (such extensions collectively, the “D&O Tail Policy” and such existing insurance policies the “Existing Insurance”), which shall (i) cover the Company, its Subsidiaries and the Indemnified Persons, (ii) be for a claims reporting or cause to be provided substitute policies or purchase or cause the Surviving Corporation to purchase a “tail policy,” in either case discovery period of at least six years from and after the Closing with respect to any claim related to any period or time at or prior to the Closing, (iii) be from the Company’s current insurance carrier(s) with respect to such coverage or an insurance carrier(s) with the same coverage or better AM Best financial strength rating and amounts (iii) have terms, conditions, retentions and containing terms and conditions limits of liability that are not no less advantageous favorable to the insureds thereunder than the coverage provided under the Existing Insurance with respect to any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against the beneficiaries thereof by reason of their having served in such capacity that existed or occurred at or prior to the Closing (including in connection with this Agreement or the transactions or actions contemplated hereby); provided that in no event shall Buyer be required to expend for the D&O Tail Policy an aggregate premium in excess of 300% of the aggregate premium amount per annum for the Existing Insurance; provided, further, that if the aggregate premium for the D&O Tail Policy exceeds such amount or the D&O Tail Policy is not available, then the Company shall be obligated to obtain a D&O Tail Policy with the Indemnified Parties than such policy greatest coverage available, with respect to matters arising 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 200% of the last annual premium paid by the Company occurring prior to the date hereof in respect of the coverage required to be obtained pursuant heretoClosing, but in such case shall purchase as much coverage as reasonably practicable for a cost not exceeding such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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 TimeIf Buyer, the provisions of this Section 5.11 shall continue in effect until the final disposition of such Action.
(e) 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.
(f) In the event that the Surviving Corporation or Parent Company or any of their respective successors or assigns its Subsidiaries (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Person, then, and in each such case, Buyer shall ensure that proper provision shall be made so that the successors and assigns such continuing or surviving entity or transferee of the Surviving Corporation or Parentsuch assets, as the case may be, shall succeed to assumes the obligations set forth in this Section 5.115.07.
(e) The rights of each Indemnified Person under this Section 5.07 shall be in addition to any rights such Person may have under Applicable Law or under any agreement with the Company or any of its Subsidiaries. This Section 5.07 is intended to benefit any individual referenced in this Section 5.07 or indemnified hereunder (and his or her respective heirs, successors and assigns), each of whom may enforce the provisions of this Section 5.07 (whether or not he or she is a party to this Agreement).
Appears in 2 contracts
Samples: Merger Agreement (MasterBrand, Inc.), Merger Agreement (MasterBrand, Inc.)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify VeraSun and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company Sub agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights to for advancement of expenses relating thereto expenses) now existing in favor of any Indemnified Party the current or former directors or officers of US BioEnergy or its Subsidiaries as provided in the articles their respective certificates of incorporation or bylaws by-laws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) other agreements of the Company Disclosure Letter and US BioEnergy as in effect immediately prior to on the date of this Agreement shall be assumed by the Surviving Corporation in the Merger, without further action, as of the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effecteffect in accordance with their terms.
(b) In the event that VeraSun or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all its properties and assets to any person, then, and in each such case, VeraSun shall cause proper provision to be made so that the successors and assigns of VeraSun or the Surviving Corporation, as applicable, assume the obligations of VeraSun or the Surviving Corporation, as applicable, set forth in this Section 5.06 In the event that VeraSun takes any action to materially impair the financial ability of the Surviving Corporation to satisfy the obligations referred to in Section 5.06, VeraSun will either guarantee such obligations or take such other action to insure that the ability of the Surviving Corporation to satisfy such obligations will not be amended, repealed or otherwise modified diminished in any manner that would adversely affect any right thereunder of any such Indemnified Partymaterial respect.
(c) For a period of six years from and after the Effective Time, Parent VeraSun shall either cause to be maintained maintain in effect the US BioEnergy’s current policies of directors’ and officers’ liability insurance covering acts or omissions occurring prior to the Effective Time covering each person currently covered by US BioEnergy’s directors’ and fiduciary officers’ liability insurance maintained by the Company and its Subsidiaries or cause policy on terms with respect 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 such coverage and amounts and no less favorable than those of such policy in effect on the date of this Agreement; provided that VeraSun may substitute therefor policies of VeraSun or its subsidiaries containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on coverage and amount no less favorable to such directors or before the Effective Timeofficers; provided, however, that after the Effective Time, Parent in no event shall not VeraSun be required to pay with respect to such insurance policies in respect of any one policy year annual premiums for insurance under this Section 5.06(c) in excess of 200250% of the last amount of the annual premium premiums paid by the Company prior to the date hereof US BioEnergy in respect 2006 as set forth in Section 5.06(c) of the US BioEnergy Disclosure Schedule; provided that VeraSun shall nevertheless be obligated to provide such coverage required to as may be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such 250% amount. All such policiesAlternatively, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Companyat US BioEnergy’s option, the Company may purchase, prior to the Effective Time, US BioEnergy may purchase a six-year prepaid, non-revocable and non-cancellable tail prepaid “tail” policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the US BioEnergy’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby; provided, however, that in no event shall any such policy require payment of annual premiums for such insurance in excess of 250% of the amount of the annual premiums paid by US BioEnergy in 2006 as set forth in Section 5.06(c) of the US BioEnergy Disclosure Schedule. If such “tail” prepaid tail policy has been obtained by the Company prior to the Effective Timein accordance with this Section 5.06(c), Parent VeraSun 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 it and the Surviving Corporation, and no other party shall have any further obligation to purchase or pay for insurance hereunder.
(d) 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.
(e) 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 5.06 (i) are intended to benefitbe for the benefit of, and shall will be enforceable by, each of the Indemnified Parties and their respective indemnified party, his or her heirs and legal representatives.
(f) In the event that the Surviving Corporation his or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person her representatives and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of 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 caseperson may have by contract or otherwise. VeraSun will pay (as incurred) all out-of-pocket expenses, proper provision shall be made so including reasonable fees and expenses of counsel, that a current or former director or officer of US BioEnergy may incur in enforcing the successors indemnity and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the other obligations set forth provided for in this Section 5.115.06.
Appears in 2 contracts
Samples: Merger Agreement (US BioEnergy CORP), Merger Agreement (Verasun Energy Corp)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary Parent agrees to cause each of the date on which the Effective Time occurs, Parent shall, or shall cause the Trident Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Sun Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the applicable Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors or officers of Trident or the Trident Subsidiaries or Sun and the Sun Subsidiaries, as applicable, to the fullest extent provided in the by their respective articles of association, certificates of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) other similar agreements of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company Trident or any of its the Trident Subsidiaries or Sun or any of the Sun Subsidiaries, as applicable, as in effect as of, in the case of Trident, the date of this Agreement or, in the case of Sun, the date Sun countersigns this Agreement shall survive the Merger Mergers and shall continue in full force and effecteffect in accordance with their terms.
(b) In the event that subsequent to the Mergers either the Trident Surviving Corporation or the Sun Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, the Trident Surviving Corporation or the Sun Surviving Corporation, as applicable, shall not cause proper provision to be amendedmade so that the successors and assigns of the Trident Surviving Corporation or the Sun Surviving Corporation, repealed or otherwise modified as applicable, assume the obligations set forth in any manner that would adversely affect any right thereunder of any such Indemnified Partythis Section 6.9.
(c) For a period of six seven (7) years from the applicable Effective Time, Parent shall either cause to be maintained procure that each of the Trident Surviving Corporation and the Sun Surviving Corporation shall maintain in effect the current exculpation, indemnification and advancement of expenses equivalent to the provisions of the Trident Certificate of Incorporation or Sun Articles, as applicable, with respect to acts or omissions occurring prior to the applicable 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 Closing, each of Trident and Sun shall purchase a seven (7)-year prepaid “tail” policy, with terms, conditions, retentions and limits of liability that are substantially equivalent to the coverage provided under each of Trident’s and Sun’s existing 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy insurance, with respect to matters arising on or before the applicable Effective Time; provided, however, that after the Effective Time, Parent shall not be required to pay Time (including in connection with respect to such insurance policies in respect of any one policy year annual premiums in excess of 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable this Agreement and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions or actions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Timethis 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 Trident Surviving Corporation or the Sun Surviving Corporation.
(d) Notwithstanding anything herein , as applicable; provided, however that neither Trident nor Sun shall pay or agree to pay, and the contraryTrident Surviving Corporation or the Sun Surviving Corporation, if any Action (whether arising beforeas applicable, at or after shall not be required to pay, in the Effective Time) is instituted against any Indemnified Party on or prior to the sixth anniversary aggregate in excess of 300% of the Effective Timelast annual premium paid by Trident or Sun, as applicable, prior to, in the case of Trident, the provisions date of this Section 5.11 shall continue Agreement or, in effect until the final disposition case of Sun, the date Sun countersigns this Agreement in respect of such Action“tail” policy, and if the cost of such “tail” policy would otherwise exceed such maximum amount, Trident or Sun, as applicable, shall purchase as much coverage as reasonably practicable up to such maximum amount.
(e) 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 6.9 shall survive the consummation of the Merger and, notwithstanding any other provision of this Agreement that may be to the contrary, expressly Mergers and are intended to benefitbe for the benefit of, and shall will be enforceable by, each current or former director or officer of the Indemnified Parties Trident and their respective Sun, his or her heirs and legal representatives.
(f) In the event that the Surviving Corporation his or Parent or any of their respective successors or assigns (i) consolidates with or merges into her representatives and are in addition to, and not in substitution for, any other Person and shall not be the continuing rights to indemnification or surviving corporation contribution that any such person may have by contract or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.11otherwise.
Appears in 2 contracts
Samples: Merger Agreement (3d Systems Corp), Merger Agreement (3d Systems Corp)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree Cedar agrees that all rights to indemnification indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors or officers of Pine and the Pine Subsidiaries as provided in the articles their respective certificates of incorporation or bylaws by-laws (or comparable organizational documents) and any indemnification or other similar agreements of Pine or any of the Company and its Subsidiaries or Pine Subsidiaries, in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and each case as in effect immediately prior to on the date of this Agreement, shall be assumed by Cedar in the Merger, without further action, as of the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effect, and shall not be amended, repealed or otherwise modified effect in any manner that would adversely affect any right thereunder of any such Indemnified Partyaccordance with their terms.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent Cedar or any of their respective its successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Person, then, and in each such case, Cedar shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to Cedar assume the obligations set forth in this Section 5.116.05.
(c) At or prior to the Effective Time, Cedar shall purchase a “tail” directors’ and officers’ liability insurance policy for Pine and its current and former directors and officers who are currently covered by the directors’ and officers’ liability insurance coverage currently maintained by Pine in a form reasonably acceptable to Pine that shall provide such directors and officers 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 Pine. Cedar shall maintain such policy in full force and effect, and continue to honor the obligations thereunder.
(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, 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 2 contracts
Samples: Merger Agreement (Embarq CORP), Merger Agreement (Centurytel Inc)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. The Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except Merger Sub agree that, except as may be required limited by applicable Lawlaw, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement existing as of expenses relating thereto now existing the date hereof in favor of any Indemnified Party as provided in the articles of incorporation current or bylaws (former directors or comparable organizational documents) officers of the Company and its Subsidiaries or (each, an "Indemnified Person") as provided in any indemnification agreement their respective certificates of incorporation and by-laws (or form thereofsimilar organizational documents) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries as provided under applicable state law shall survive the Merger Merger, shall be retained by such persons after the Merger, and shall continue in full force and effecteffect after the Merger is consummated in accordance with their terms, and the obligation to provide such rights shall not be amended, repealed or otherwise modified assumed by the Surviving Corporation in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Merger at the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 Corporationfurther action.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority of substantially all its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume the obligations set forth in this Section 5.115.8.
(c) For six years after the Effective Time, the Surviving Corporation shall maintain (and Parent shall cause the Surviving Corporation to 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 in their capacities as directors and officers for acts or omissions 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 such policy as in effect on the date of this Merger Agreement; provided that the 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 5.8(c). The Company and the Surviving Corporation shall use their respective best efforts to negotiate a one time premium for such coverage, provided that the Company and the Surviving Corporation shall not be obligated to spend more than $700,000 for such one time premium. If the Company's existing carrier or a reputable insurance company is willing to provide such coverage in exchange for a one time premium but such one time premium exceeds $700,000, the directors of the Company immediately prior to the Effective Time (other than the Management Participants)(the "Non-Management Directors") shall be permitted to elect as a group either (i) to allow the Company or the Surviving Corporation to obtain as much comparable insurance as possible for a one time premium equal to $700,000 or (ii) to seek coverage on a one-time premium basis from another carrier, in which event the Company (or, if the Company fails to do so, the Surviving Corporation) shall pay the cost of such alternate coverage up to an amount equal to $700,000. If neither the Company's carrier nor any reputable insurance company known to Parent is willing to provide such coverage in exchange for a one time premium, (i) the Surviving Corporation shall pay annual premiums for the coverage described in the first sentence of this Section 5.8(c), provided that the Surviving Corporation shall not be obligated to pay annual premiums for such coverage from any source other than the escrow account provided for in this Section 5.8(c), (ii) the Parent shall cause the Surviving Corporation to deposit $700,000 in an interest-bearing escrow account mutually satisfactory to Parent and a majority of the Non-Management Directors, such deposit to occur promptly after the Effective Time, and (iii) any taxes on the income earned in such account shall be paid from such account.
(d) In the event that any action, suit, proceeding or investigation is commenced relating to matters for which indemnification is provided hereunder or to the Transactions, whether such commencement is before or after the Effective Time, the parties hereto agree to cooperate and use their respective reasonable efforts to vigorously defend against and respond thereto and Parent shall be entitled to participate in the defense of such action, suit, proceeding or investigation at its expense. Notwithstanding anything contained in this Section 5.8(d), neither the Merger Sub nor the Surviving Corporation shall have any obligation hereunder to any Indemnified Person if the indemnification of such Indemnified Person in the manner contemplated hereby is prohibited by applicable law.
(e) The provisions of this Section 5.8 are intended to be for the benefit of, and will be enforceable by, each Indemnified Person, his or her heirs and his or her representatives.
Appears in 2 contracts
Samples: Merger Agreement (Vestcom International Inc), Merger Agreement (Vector Merger Corp)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company PlanFor a period of six (6) years following the Closing Date, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or Buyer shall cause the Surviving Corporation to, indemnify and hold harmless each present (as Company to maintain all rights of the Effective Time) and current or former officerdirectors, director, manager officers or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement managers (or form thereof) identified in Section 5.11(aindividuals holding similar positions) of the Company Disclosure Letter and in effect immediately prior who have the right to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise indemnification or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought exculpation by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities (collectively, the “Indemnitees”) for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party Closing Date as provided in the articles certificate of incorporation formation or bylaws (or comparable organizational documents) limited liability company agreement of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and as now in effect immediately prior to the Effective Time between such Indemnified Party and the Company indemnification agreements or any of its Subsidiaries shall survive other arrangements set forth on Schedule 6.6(a) (collectively, the Merger and continue in full force and effect, and “Indemnification Rights”). The Indemnification Rights shall not be amended, repealed amended or otherwise modified in any manner that would adversely affect the rights of the Indemnitees, unless such modification is required by Law.
(b) Buyer hereby acknowledges that certain Indemnitees may have rights to indemnification, advancement of expenses and/or insurance provided by persons other than the Company (collectively, the “Indemnitors”). Buyer hereby agrees (i) that the Company is the indemnitor of first resort (i.e., its obligations to the Indemnitees are primary and any right thereunder obligation of the Indemnitors are secondary), and (ii) the Company shall be required to (and Buyer shall cause the Company to) advance the full amount of expenses incurred by any Indemnitee and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent (x) legally permitted and (y) required by the terms of this Agreement or the Company’s certificate of formation or limited liability company agreement (or any arrangement set forth on Schedule 6.6(a)), without regard to any rights the Indemnitee may have against the Indemnitors. Buyer and the Company irrevocably waive, relinquish and release the Indemnitors from any and all claims against the Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. Buyer and the Company further agree that no advancement or payment by an Indemnitor on behalf of an Indemnitee with respect to any claim for which an Indemnitee has sought indemnification from the Company shall affect the foregoing and the applicable Indemnitor shall have a right of contribution and/or be subrogated to the extent of such Indemnified Partyadvancement or payment to all of the rights of recovery of the Indemnitee against the Company. Buyer and the Indemnitees agree that the Indemnitors are express third party beneficiaries of the terms of this Section 6.6(b).
(c) For On or prior to the Closing Date, Seller shall obtain a period of six years from (6) year tail insurance policy (the Effective Time, Parent shall either cause “D&O Tail Policy”) with respect to be maintained in effect the current policies of directorsofficers’ and officersdirectors’ liability insurance covering the Persons who are presently covered by the Company’s (or a parent company’s) officers’ and fiduciary directors’ 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy , with respect to matters arising actions and omissions occurring prior to the Closing, on terms consistent in all material respects with the Company’s existing policy in effect on the date hereof.
(d) The obligations of Buyer under this Section 6.6 shall not be terminated or before modified in such a manner as to adversely affect any Indemnitee to whom this Section 6.6 applies without the Effective Timeconsent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 6.6 applies shall be express third party beneficiaries of this Section 6.6).
(e) Buyer 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 6.6 with counsel selected by Buyer; 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 200% 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. All such policies, including any substitute policies, Indemnitee shall be issued by carriers rated A, XII or higher by A.M. Best Company. At permitted to participate in the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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 defense of such Action.
(e) 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 Claim at their respective heirs and legal representativesown expense.
(f) Each of Buyer and the Indemnitee shall, and Buyer shall cause the Company to, reasonably cooperate, and cause their respective Affiliates to reasonably cooperate, in the defense of any Claim and shall provide reasonable access to properties and individuals as reasonably requested in advance in writing and confirmed by the Company 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.
(g) In the event that Buyer, the Surviving Corporation or Parent Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger merger; or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of Buyer and the Surviving Corporation or Parent, as the case may be, Company shall succeed to assume all of the obligations of Buyer and the Company set forth in this Section 5.116.6.
Appears in 2 contracts
Samples: Unit Purchase Agreement, Unit Purchase Agreement (Choice Hotels International Inc /De)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors or officers of the Company or each of its Subsidiaries as provided in the articles their respective certificates of incorporation or bylaws by-laws (or comparable organizational documents) will be assumed by Parent and Parent will be directly responsible for such indemnification, without further action, as of the Effective Time and will continue in full force and effect in accordance with their respective terms. In addition, from and after the Effective Time, directors and officers of the Company who become or remain directors or officers of Parent or Sub will be entitled to the same indemnity rights and protections (including those provided by directors' and officers' liability insurance) as are afforded to other directors and officers of Parent. Notwithstanding any other provision hereof, the provisions of this Section 6.14 (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.
(b) Parent will, and will cause the Surviving Corporation to, maintain in effect for not less than six years after the Effective Time policies of directors' and officers' liability insurance equivalent in all material respects to those maintained by or on behalf of the Company and its Subsidiaries or in any indemnification agreement on the date hereof (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 having at least the same coverage and amounts and containing terms and conditions that which are not no less advantageous in the aggregate to the Indemnified Parties than persons currently covered by such policy policies as insured) with respect to matters arising on existing or before occurring at or prior to the Effective Time; provided, however, that after if the Effective Time, Parent shall not be required to pay with respect to aggregate annual premiums for such insurance policies in respect of at any one policy year annual premiums in excess of time during such period exceed 200% of the last annual per annum rate of premium currently 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising for such insurance on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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 date of this Section 5.11 shall continue in effect until the final disposition of such Action.
(e) The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitledAgreement, 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.
(f) In the event that then Parent will cause the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, thento, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parentwill, as provide the case may be, maximum coverage that shall succeed then be available at an annual premium equal to the obligations set forth in this Section 5.11200% of such rate.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (CTS Corp), Merger Agreement (Dynamics Corp of America)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, NHC/OP Sub and Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors or officers of the Company and its Subsidiaries as provided in the articles their respective certificates of incorporation or bylaws by-laws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) other similar agreements of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries Subsidiaries, in each case as in effect on the date of this Agreement and listed on Section 5.07 of the Company Disclosure Schedule, shall be assumed by the Surviving Person in the Merger, without further action, as of the Effective Time and shall survive the Merger and shall continue in full force and effect, and shall not be amended, repealed or otherwise modified effect in any manner that would adversely affect any right thereunder of any such Indemnified Partyaccordance with their terms for six years following the Merger.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent Person or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, NHC/OP Sub shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to Person assume the obligations set forth in this Section 5.115.07.
(c) For four years after the Effective Time, NHC/OP Sub shall maintain in effect the Company’s current directors’ and officers’ liability insurance in respect of acts or omissions occurring prior to the Effective Time, covering each person covered as of the date hereof by the Company’s directors’ and officers’ liability insurance policy (a true, complete and correct copy of which has heretofore been delivered to NHC/OP Sub), on terms with respect to such coverage and amounts no less favorable in any material respect than those of such policy in effect on the date of this Agreement; provided that NHC/OP Sub may substitute therefor a policy or policies of a reputable insurance company containing terms with respect to coverage and amount no less favorable in any material respect to such insured persons.
(d) The provisions of this Section 5.07 (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, 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 2 contracts
Samples: Merger Agreement (National Health Realty Inc), Merger Agreement (National Healthcare Corp)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company Merger Sub agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at as of or prior to the Effective Time (and any rights relating to the advancement of expenses relating thereto now expenses) existing as of the date hereof in favor of any Indemnified Party the current or former directors, officers, employees or agents of the Company and its Subsidiaries (each, an "Indemnitee") as provided in the articles their respective certificates of incorporation or bylaws by-laws (or comparable organizational documents) and indemnification Contracts in existence as of the date hereof between the Company and or its Subsidiaries or in and any indemnification agreement (or form thereof) identified in Section 5.11(a) of them shall be assumed by the Company Disclosure Letter and in effect immediately prior to Surviving Corporation, without further action, as of the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effecteffect in accordance with their terms. Such rights shall not be amended, or otherwise modified in any manner that would adversely affect the rights of the Indemnitees, unless such modification is required by Law. In addition, the Surviving Corporation shall pay any related expenses of any Indemnitee under this Section 6.04(a) as incurred to the fullest extent permitted under applicable Law (including expenses incurred to determine whether indemnification or exculpation is available), provided that the person to whom expenses are advanced provides an undertaking to repay such advances to the extent required by applicable Law. Parent shall take any and all actions necessary to ensure that the Surviving Corporation complies with and honors the foregoing obligation as in effect on the date hereof, including providing funds, if necessary, to permit the Surviving Corporation to comply with its obligations under this Section 6.04(a).
(b) Parent, from and after the Effective Time, shall cause (i) the certificate of incorporation and by-laws of the Surviving Corporation to contain provisions no less favorable with respect to the 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 Certificate and the Company By-laws and (ii) the certificate of incorporation and by-laws (or similar organizational documents) of each Subsidiary of the Surviving Corporation to contain provisions no less favorable with respect to the limitation of certain liabilities of directors, officers, employees and agents and indemnification than those in effect as of the date hereof and set forth in the certificate of incorporation or by-laws (or similar organizational documents) of the applicable Subsidiary of the Company, which provisions, in the case of clauses (i) and (ii), shall not be amended, repealed or otherwise modified in any a manner that would adversely affect any right the rights thereunder of any such Indemnified Partythe Indemnitees.
(c) For a period of six years from after the Effective Time, Parent shall, or shall either cause to be maintained in effect 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 to, obtain and amounts maintain director's and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy officers' liability insurance with respect to matters arising on acts, errors or before omissions occurring prior to the Effective TimeTime ("Run-Off Insurance"). Such Run-Off Insurance shall (i) solely be negotiated and implemented by the Parent or its agents, (ii) provide coverage for each person or entity covered by the Company's current directors and officers liability insurance policy as in effect on the date hereof, (iii) not be cancelable by the Parent, its agents or the Surviving Corporation during the six year term of such Run-Off Insurance and (iv) be no less favorable with respect to coverage terms and amounts in any material respect than the Company's current directors' and officers' liability insurance policy as in effect on the date hereof; provided, however, that after in no event shall Parent, any of its Subsidiaries or the Effective Time, Parent shall not Surviving Corporation be obligated or required to pay with respect to such annualized aggregate premiums for insurance policies in respect of any one policy year annual premiums under this Section 6.04(c) in excess of 200275% of the last annual premium amount of the aggregate premiums paid by the Company prior to for the date hereof in respect of the coverage required to be obtained pursuant heretoperiod from February 28, but in such case shall purchase as much coverage as reasonably practicable 2004 to, and including, February 28, 2005, for such amount. All purpose (which premiums for such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable period are hereby represented and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained warranted by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, be $429,250); provided that Parent shall cause nevertheless be obligated to provide such coverage as may be obtained for such 275% amount. Subject to this Section 6.04(c), the Parent or its agents shall have the right to substitute the insurance company providing the Company's current director's and officer's liability insurance policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Surviving Corporationwith another financially sound insurance company.
(d) 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.
(e) 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 6.04 are (i) intended to benefitbe for the benefit of, and shall will be enforceable by, each of the Indemnified Parties and their respective Indemnitee, his or her heirs and legal representativeshis 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.
(fe) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, Parent shall cause proper provision shall to be made so that the successors successor and assigns assign of the Surviving Corporation or ParentCorporation, as the case may be, shall succeed to assumes the obligations set forth in this Section 5.116.04.
(f) The obligations of Parent and the Surviving Corporation under this Section 6.04 shall not be terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 6.04 applies without the consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 6.04 applies shall be third party beneficiaries of this Section 6.04).
Appears in 2 contracts
Samples: Merger Agreement (Jones Apparel Group Inc), Merger Agreement (Barneys New York Inc)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary The articles of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement incorporation and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event bylaws of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to contain the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights provisions with respect to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided liability set forth in the Company's articles of incorporation or and bylaws (or comparable organizational documents) on the date of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effectthis Agreement, and which provisions shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For for a period of six years from the Effective TimeTime in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time were directors, officers, employees or agents of the Company, unless such modification is required by law. Parent shall either cause to be maintained in effect hereby unconditionally and irrevocably guarantees for the current policies benefit of directors’ the Company's directors and officers’ liability insurance and fiduciary liability insurance maintained by officers the obligations of the Company and its Subsidiaries or cause to be provided substitute policies or purchase or cause the Surviving Corporation under the foregoing indemnification arrangements, including any such existing indemnification agreements to purchase which the Company is a “tail policy,” in either case of at least the same coverage and amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before the Effective Timeparty; provided, however, that after in no event shall the Effective Time, Parent shall not be required to pay with respect to amount of such insurance policies in respect of any one policy year annual premiums in excess of 200% 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 guarantee exceed an amount permitted for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At a guarantee under the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 CorporationParent's credit agreement.
(db) Notwithstanding anything herein to the contraryIf Parent, 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.
(e) 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.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, then and in each such case, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation or ParentCorporation, as the case may be, shall succeed to assume the obligations set forth in this Section 5.115.6.
(c) Parent shall, to the fullest extent permitted by applicable law, indemnify and defend (and bear all costs and expenses, including without limitation reasonable attorneys' fees and costs, associated therewith) each officer and director of the Company serving as such immediately before the Effective Time for and against any and all claims, damages and losses relating to or arising out of (i) their performance of their respective Company duties prior to the Effective Time, or (ii) the consummation of any of the transactions contemplated in this Agreement Parent shall cause the Surviving Corporation to provide officers' and directors' liability insurance 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 on the date hereof (or, if such insurance policy cannot be obtained, such insurance policy on terms with respect to coverage and amount as favorable as can be obtained, subject to the proviso at the conclusion of this sentence), provided, however, that the aggregate cost of such insurance over such four-year period shall not exceed the product of four multiplied by the premium cost for such policy during the year ended April 30, 1997.
Appears in 2 contracts
Samples: Merger Agreement (Mail Boxes Etc), Merger Agreement (Us Office Products Co)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, The Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors or officers of the Company and its Subsidiaries as provided in the articles their respective certificate of incorporation or bylaws (or comparable organizational documents) and any indemnification agreements of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and as each is in effect immediately prior to the Effective Time), shall be assumed by the Surviving Corporation, without further action, as of the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effecteffect in accordance with their terms, and the Parent shall cause the Surviving Corporation to honor all such rights. In the event that any Independent Directors remain on the Company's board of directors in accordance with the terms of Section 1.3(c), the Parent agrees to cause the Surviving Corporation to purchase a directors' and officers' liability insurance policy for the benefit of such Independent Directors on terms with respect to coverage and amounts no less favorable than those of the Company's directors' and officers' liability insurance policy currently in effect. The certificate of incorporation and bylaws of the Surviving Corporation will contain provisions with respect to such indemnification and elimination of liability for monetary damages at least as favorable to the directors and officers of the Company as those set forth in the current certificate of incorporation and bylaws of the Company, and for a period of six (6) years from the Effective Time, those provisions will not be amended, repealed or amended or otherwise modified in any manner that would adversely affect any right the rights thereunder of any the directors and officers of the Company, except to the extent, if any, that such Indemnified Partymodification is required by applicable law.
(cb) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(f) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Person, or otherwise dissolves the Surviving Corporation, then, and in each such case, the Parent shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume the obligations set forth in this Section 5.115.7.
(c) At or prior to the earlier to occur of (i) the purchase of shares of Company Common Stock by the Purchaser pursuant to the Offer or (ii) the Effective Time, the Company shall purchase directors' and officers' liability insurance coverage for the Company's directors and officers for up to six years following the earlier to occur of (i) the purchase of shares of Company Common Stock by the Purchaser pursuant to the Offer or (ii) the Effective Time with respect to claims arising from or related to facts or events which occurred at or before the Effective Time which shall provide them with the same coverage and amounts and containing terms and conditions which are no less advantageous to the Company's current or former directors and officers than those in effect on the date hereof, provided that the Company shall not pay (or be required to pay in the future) aggregate premiums for such insurance coverage in excess of $1,000,000. In addition, at or before the earlier to occur of (i) the purchase of shares of Company Common Stock by the Purchaser pursuant to the Offer or (ii) the Effective Time, the Purchaser and Parent acknowledge and agree that the Company will execute and deliver to each of its directors and officers an indemnification agreement in a form previously provided to Parent.
(d) The provisions of this Section 5.7 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 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 (Firepond Inc), Merger Agreement (Firepond Inc)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors or officers of the Company and the Subsidiaries as provided in the articles their respective certificates of incorporation or bylaws by-laws (or comparable organizational documents) and any indemnification agreements of the Company and its Subsidiaries or Company, the existence of which does not constitute a breach of this Agreement, shall be assumed by the Surviving Corporation in any indemnification agreement (or form thereof) identified in Section 5.11(a) the Merger, without further action, as of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effect, and shall not be amended, repealed or otherwise modified effect (to the extent consistent with applicable law) in any manner that would adversely affect any right thereunder of any such Indemnified Partyaccordance with their terms.
(cb) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) Notwithstanding anything herein Corporation to the contrary, if any Action (whether arising before, at or after the Effective Time) is instituted against any Indemnified Party on or prior honor its commitments and obligations pursuant 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.
(e) 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 otherwise5.5. 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.
(f) In the event that Parent or the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall will be made so that the successors and assigns of Parent or the Surviving Corporation or ParentCorporation, as the case may be, shall succeed to assume the obligations set forth in this Section 5.115.5(b).
(c) For six years after the Effective Time, the Surviving Corporation shall provide officers' and directors' liability insurance in respect of acts or omissions occurring prior to the Effective Time, including but not limited to the transactions contemplated by this Agreement, covering each person currently covered by the Company's officers' and directors' liability insurance policy, or who becomes covered by such policy prior to the Effective Time, on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date hereof; provided that in satisfying its obligation under this Section 5.5 the Surviving Corporation shall not be obligated to pay annual premiums in excess of 175% of the amount per annum the Company paid in its last full fiscal year.
(d) The provisions of this Section 5.5 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 or, any other rights to indemnification or contribution that any such person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Score Acquisition Corp), Agreement and Plan of Merger (Talley Industries Inc)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for assume the obligation obligations with respect to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities liabilities, including advancement of expenses, 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, officers, employees or agents of the Company or any Indemnified Party of its Subsidiaries as provided in the articles Company’s or any of incorporation its Subsidiaries’ certificate of incorporation, the Bylaws or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time Contract between such Indemnified Party directors, officers, employees or agents and the Company or any of its Subsidiaries (in each case, as in effect on the date of this Agreement), without further action, as of the Effective Time and such obligations shall survive the Merger and shall continue in full force and effect, and shall not be amended, repealed or otherwise modified effect in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For accordance with their terms for a period of not less than six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and other assets to any Personperson, then, and in each such case, Parent shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to expressly assume the obligations set forth in this Section 5.116.04 for a period of not less than six years from the Effective Time. 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 6.04(a), Parent will either guarantee such obligations or take such other action to ensure that the ability of the Surviving Corporation, legal and financial, to satisfy such obligations will not be diminished in any material respect.
(c) Commencing at or prior to the Effective Time and until six years after the Effective Time, Parent shall maintain (directly or indirectly through the Company’s existing insurance programs) in effect 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 directors’ and officers’ liability insurance policy maintained by the Company or its Subsidiaries (a complete and accurate copy of which has been heretofore delivered to Parent) on terms with respect to such coverage and amounts comparable to the insurance maintained currently by the Company or its Subsidiaries, as applicable; provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not less advantageous to the beneficiaries of the current policies and with carriers having an A.M. Best “key rating” of A X or better, provided that such substitution shall not result in any gaps or lapses in coverage with respect to matters occurring prior to the Effective Time, and provided, further, that the Surviving Corporation shall first use its reasonable best efforts to obtain from such carriers a so-called “tail” policy providing such coverage and being effective for the full six year period referred to above, and shall be entitled to obtain such coverage in annual policies from such carriers only if it is unable, after exerting such efforts for a reasonable period of time, to obtain such a tail policy; and provided, further, that the Surviving Corporation shall not be required to pay an annual premium in excess of 300% of the last annual premium paid by the Company prior to the date of this Agreement as set forth in Section 6.04(c) of the Company Disclosure Schedule (or, in the case of a tail policy obtained pursuant to the preceding proviso, shall not be required to pay an aggregate premium therefor in excess of an amount equal to six times 300% of such last annual premium) and, if the Surviving Corporation is unable to obtain the insurance required by this Section 6.04(c), it shall obtain as much comparable insurance as possible for an annual premium (or an aggregate premium, as the case may be) equal to such maximum amount; and provided, further that Parent shall not acquire the insurance required by this Section 6.04(c) at or prior to the Effective Time without the Company’s prior consent (such consent not to be unreasonably withheld or delayed).
(d) The provisions of this Section 6.04: (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. It is expressly agreed that the indemnified parties shall be third party beneficiaries of this Section 6.04.
Appears in 2 contracts
Samples: Merger Agreement (Greenfield Online Inc), Merger Agreement (Microsoft Corp)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights Parent acknowledges and agrees that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent by operation of law assume the obligations with respect to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities liabilities, including advancement of expenses, 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, officers, employees or agents of the Company or any Indemnified Party of its Subsidiaries to the same extent as provided in the Company’s or any of its Subsidiaries’ certificate or articles of incorporation incorporation, bylaws or bylaws (other organizational documents or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time Contract between such Indemnified Party directors, officers, employees or agents and the Company or any of its Subsidiaries (in each case, as in effect on the date of this Agreement), without further action, as of the Effective Time and such obligations shall survive the Merger and shall continue in full force and effecteffect in accordance with their terms for a period of not less than six (6) years from the Effective Time and that all rights to indemnification in respect of any action pending or asserted or any claim made within such period shall continue until the disposition of such action or resolution of such claim.
(b) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers or conveys all or substantially all of its properties and other assets to any Person, then, and in each such case, the Surviving Corporation shall cause proper provision to be made so that the successors and assigns of the Surviving Corporation shall expressly assume the obligations set forth in this Section 6.04 for a period of not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Partyless than six (6) years from the Effective Time.
(c) For a period of six (6) years from after the Effective Time, Parent the Surviving Corporation shall either cause to be maintained maintain (directly or indirectly through the Company’s existing insurance programs) in effect the current policies of 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 directors’ and fiduciary officers’ liability insurance policy maintained by the Company and or its Subsidiaries on terms with respect to such coverage and amounts comparable to the insurance maintained currently by the Company or cause to be its Subsidiaries, as applicable; provided substitute policies or purchase or cause that the Surviving Corporation to purchase a “tail policy,” in either case may substitute therefor policies of at least the same coverage and amounts and containing terms and conditions that which are not less advantageous in the aggregate to the Indemnified Parties than beneficiaries of the current policies and with carriers having an A.M. Best “key rating” of A X or better, provided that such policy substitution shall not result in any gaps or lapses in coverage with respect to matters arising on or before the Effective Time; provided, however, that after occurring prior to the Effective Time, Parent and provided, further, that the Surviving Corporation shall first use its reasonable best efforts to obtain from such carriers a so-called “tail” policy providing such coverage and being effective for the full six (6) year period referred to above, and shall be entitled to obtain such coverage in annual policies from such carriers only if it is unable, after exerting such efforts for a reasonable period of time, to obtain such a “tail” policy; and provided, further, that the Surviving Corporation shall not be required to pay with respect to such insurance policies in respect of any one policy year an annual premiums premium in excess of 200% of the last annual premium paid by the Company prior to the date hereof of this Agreement (or, in respect the case of the coverage required to be a “tail” policy obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Timepreceding provision, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) The indemnification provided for herein shall not be deemed exclusive required to pay an aggregate premium therefor in excess of any other rights an amount equal to which an Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise. The provisions 300% of this Section 5.11 shall survive the consummation of the Merger such last annual premium) 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.
(f) In the event that if the Surviving Corporation is unable to obtain the insurance required by this Section 6.04(c), it shall obtain as much comparable insurance as possible for an annual premium (or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parentan aggregate premium, as the case may be, shall succeed ) equal to the obligations set forth in such maximum amount.
(d) The provisions of this Section 5.116.04 (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. It is expressly agreed that the indemnified parties shall be third party beneficiaries of this Section 6.04.
Appears in 2 contracts
Samples: Merger Agreement (Hirsch International Corp), Merger Agreement (Hirsch International Corp)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors, officers, employees or agents of CAX and its Subsidiaries as provided in the articles their respective certificates of incorporation or bylaws by-laws (or comparable organizational documentsor governing) of the Company and its Subsidiaries or in any indemnification agreement (agreements or form thereof) identified in Section 5.11(a) arrangements of CAX the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any existence of its Subsidiaries which does not cause a breach of this Agreement shall survive the Merger and shall continue in full force and effect, and shall not be amendedwithout amendment, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from after the Effective Time, Parent shall either cause to be maintained in effect the current policies Time and all obligation of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and CAX and/or its Subsidiaries or cause to shall, from and after the Effective Time be provided substitute policies or purchase or cause assumed by and become obligations of the Surviving Corporation to purchase a “tail policy,” in either case of at least the same coverage and amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before the Effective TimeCorporation; provided, however, that all rights to indemnification in respect of any claim asserted or made within such period shall continue until the final disposition of such claim. AIC agrees from and after the Effective Time, Parent shall not be required to pay with respect to such insurance policies in respect any expenses of any one policy year annual premiums indemnified person under this Section 5.4 in excess of 200% advance of the last annual premium paid final disposition of any action, proceeding or claim relating to any such act or omission to the fullest extent permitted under the DGCL upon receipt from the applicable indemnified person to whom advances are to be advanced of any undertaking to repay such advances required under the DGCL. AIC shall, from and after the Effective Time, cooperate in the defense of any such matter.
(b) From and after the Effective Time, AIC shall, to the fullest extent permitted by the Company applicable law, indemnify, defend and hold harmless each person who is now, or has been at any time prior to the date hereof in respect of the coverage required to be obtained pursuant heretohereof, but in such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, who becomes prior to the Effective Time, a six-year prepaiddirector, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies officer, employee or agent of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and CAX or of any Subsidiary of CAX or of any predecessor to CAX or any of its Subsidiaries with respect (each an "Indemnified Party" and collectively, the "Indemnified Parties)" against all expenses (including reasonable attorney's fees and expenses), judgments, claims, damages or liabilities or, subject to matters the proviso of the next succeeding sentence, amounts paid in settlement, arising on out of actions or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company omissions occurring at or prior to the Effective Time, Parent shall cause such policy to be maintained in full force Time (and effect, for its full term, and cause all obligations thereunder to be honored by the Surviving Corporation.
(d) Notwithstanding anything herein to the contrary, if any Action (whether arising beforeasserted or claimed prior to, at or after the Effective Time) is instituted against any Indemnified Party that are, in whole or in part, based on or prior arising out of the fact that such person is or was a director, officer, employee or agent of CAX or any Subsidiary of CAX or of any predecessor to CAX or any of its Subsidiaries (the "Indemnified Liabilities"), including, without limitation, all Indemnified Liabilities to the sixth anniversary extent they are based on or arise out of or pertain to the transactions contemplated by this Agreement. In the event of any such loss, expense, claim, damage or liability (whether or not arising before the Effective Time), (i) AIC agrees to pay the provisions reasonable fees and expenses of this Section 5.11 counsel selected by the Indemnified Parties, which counsel shall continue be reasonably satisfactory to AIC, promptly after statements therefor are received and otherwise advance to such Indemnified Party, upon request, reimbursement of documented expenses reasonably incurred, in effect until either case to the final disposition extent not prohibited by the DGCL, and (ii) AIC agrees to cooperate in the defense of any such Actionmatter; provided, however, that AIC shall not be liable for any settlement effected without AIC's written consent (which consent shall not be unreasonably withheld or unreasonably delayed).
(e) 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.
(fc) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall will be made so that the successors and assigns of the Surviving Corporation Corporation, as applicable, will assume the obligations thereof set forth in this Section 5.4.
(d) The provisions of this Section 5.4 (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or Parenther 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) For six years after the Effective Time, AIC shall maintain in effect CAX'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 CAX's directors' and officers' liability insurance policy on terms with respect to such coverage and amount no less favorable in the aggregate to CAX's directors and officers, as the case may be, shall succeed to currently covered by such insurance than those of such policy in effect on the obligations set forth date of this Agreement; provided, that in the event that the aggregate premiums for insurance for the benefit of persons currently covered by CAX's officers' and directors' insurance policy under this Section 5.115.4(e) are in excess of 150% of the aggregate premiums paid by CAX in 1998 on an annualized basis for such purpose then AIC shall only be obligated to maintain such insurance coverage as is reasonably available for such amount.
Appears in 2 contracts
Samples: Merger Agreement (Commercial Assets Inc), Merger Agreement (Asset Investors Corp)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors, officers or employees of the Company as provided in the articles Company's Certificate of incorporation Incorporation or bylaws (Bylaws or comparable organizational documents) pursuant to agreements existing on the date of this Agreement shall be assumed by the Surviving Corporation, and Parent shall cause the Surviving Corporation to honor such obligations in accordance with the terms thereof, without further action, as of the Company Effective Time, and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and rights will continue in full force and effecteffort in accordance with their respective terms. Such rights, and the Surviving Corporation's and Parent's related obligations, shall not be amendedapply in all respects to the current or former directors, repealed officers and employees of each of the Company Subsidiaries as though such directors, officers and employees were entitled to indemnification rights pursuant to the Company's Certificate of Incorporation or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained Bylaws as in effect on the current policies of directors’ date hereof or pursuant to such agreements, as the case may be. In addition, from 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before the Effective Time; provided, however, that after the Effective Time, directors and officers of the Company who become or remain directors or officers of 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 200% of the last annual premium paid by the Company prior entitled 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. All such policies, same indemnity rights and protections (including any substitute policies, shall be issued those provided by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ ' and officers’ ' liability insurance insurance) as are afforded to other directors and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated herebyofficers of Parent. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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 Timeother provision hereof, the provisions of this Section 5.11 shall continue in effect until the final disposition of such Action.
5.5 (ei) 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 benefitbe for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective indemnified party, his or her heirs and legal representativeshis 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.
(fb) In the event that Parent shall, and shall cause the Surviving Corporation or Parent one of its Affiliates to, maintain in effect for six years after the Effective Time policies of directors' and officers' liability insurance equivalent in all material respects to those maintained by or on behalf of the Company and the Company Subsidiaries on the date hereof (and having coverage and containing terms and conditions which in the aggregate are not less advantageous to the persons currently covered by such policies as insured) with respect to claims arising from any actual or alleged wrongful act or omission occurring at or prior to the Effective Time for which a claim has not been made against any director or officer of the Company or any of their respective successors director or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns officer of the Surviving Corporation or Parent, as the case may be, shall succeed Company Subsidiaries prior to the obligations set forth in this Section 5.11Effective Time.
Appears in 2 contracts
Samples: Merger Agreement (Em Industries Inc), Merger Agreement (Cn Biosciences Inc)
Indemnification, Exculpation and Insurance. (a) Without The certificate of incorporation and bylaws of the Surviving Corporation shall contain all of the provisions limiting any additional rights that any employee may have under any agreement or Company Planeliminating the personal liability of directors and the provisions with respect to indemnification and advancement of expenses set forth in the Company's certificate of incorporation and bylaws on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of six (6) years from the Effective Time through in any manner that would adversely affect the sixth anniversary rights thereunder as of the date on which the Effective Time occursof individuals who at or prior to the Effective Time were directors, Parent shallofficers, employees or shall cause agents of the Company, unless such modification is required after the Effective Time by applicable law and then only to the minimum extent required by such applicable law.
(b) The Surviving Corporation to, shall indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager officer or employee of the Company and or any of its Subsidiaries subsidiaries (collectively, the “Indemnified Parties”"INDEMNIFIED PARTIES") against any costs or expenses (including attorneys' fees), against all claimsjudgments, fines, losses, liabilitiesclaims, damages, judgments, inquiries, fines liabilities and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred amounts paid in settlement in connection with any Actionclaim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries transactions contemplated by this Agreement or (iiy) matters existing or occurring at or prior otherwise with respect to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights Time, to advancement of expenses relating thereto now existing in favor of any Indemnified Party the same extent as provided in the articles Company certificate of incorporation or bylaws bylaws, in each case for a period of six (6) years after the Effective Time. In the event of any such claim, action, suit, proceeding or comparable organizational documentsinvestigation (whether arising before or after the Effective Time) and subject to the specific terms of the Company and its Subsidiaries or in any indemnification agreement contract, (or form thereofi) identified in Section 5.11(a) of any counsel retained by the Company Disclosure Letter and in effect immediately prior to Indemnified Parties for any period after the Effective Time between shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received; provided that the Indemnified Party Parties shall be required to reimburse the Surviving Corporation for such payments in the circumstances and to the extent required by the Company certificate of incorporation or bylaws, any applicable contract or agreement or applicable law; and (iii) the Surviving Corporation will cooperate in the defense of its Subsidiaries shall survive any such matter; provided, however, that the Merger and continue in full force and effect, and Surviving Corporation shall not be amendedliable for any settlement effected without its written consent (which consent shall not be unreasonably withheld); and provided, repealed further, that, in the event that any claim or otherwise modified claims for indemnification are asserted or made within such six (6)-year period, all rights to indemnification in any manner that would adversely affect any right thereunder respect of any such claim or claims shall continue until the disposition of any and all such claims. The Indemnified PartyParties as a group may retain only one law firm to represent them in each applicable jurisdiction with respect to any single action unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case each Indemnified Party with respect to whom such a conflict exists (or group of such Indemnified Parties who among them have no such conflict) may retain one separate law firm in each applicable jurisdiction.
(c) For a period The Surviving Corporation shall honor and fulfill in all respects the obligations of six years from the Company pursuant to indemnification agreements and employment agreements and arrangements (the employee parties under such agreements and arrangements being referred to as the "COVERED PERSONS") with the Company's directors and officers existing at or before the Effective TimeTime that are listed in SCHEDULE 6.05(C).
(d) In addition, Parent Purchaser shall either cause to be maintained in effect 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 provide, or cause the Surviving Corporation to purchase provide, for a “tail policy,” in either case period of at least the same coverage and amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before six (6) years after the Effective Time, the Company's current directors and officers with an insurance and indemnification policy that provides coverage for events occurring at or prior to the Effective Time (the "D&O INSURANCE") that is no less favorable than the existing policy or, if substantially equivalent insurance coverage is unavailable, the next best available coverage; provided, however, that after Purchaser and the Effective Time, Parent Surviving Corporation shall not be required to pay with respect to such insurance policies in respect of any one policy year an annual premiums premium for the D&O Insurance in excess of 200% of the last annual premium currently paid by the Company prior to the date hereof in respect of the coverage required to be obtained pursuant heretofor such insurance, but in such case shall purchase as much such coverage as reasonably practicable possible for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) The indemnification provided for herein From and after the Effective Time, Purchaser shall not be deemed exclusive unconditionally guarantee the timely payment of all funds owing by, and the timely performance of all other obligations of, the Surviving Corporation under this Section 6.05.
(f) Nothing contained in this Section 6.05 is intended to limit in any other manner and at any time rights to which an that any Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise. The any Covered Person may have under and in accordance with all provisions of the Company's certificate of incorporation and its bylaws in each case dealing with indemnification, or any contract or agreement in effect on the date hereof or whose execution following the date hereof is permitted by the terms of this Agreement, which rights shall survive the Effective Time and shall be binding on the Surviving Corporation and all successors and assigns of the Surviving Corporation, in accordance with their respective terms.
(g) This Section 5.11 6.05 shall survive the consummation of the Merger andat the Effective Time, notwithstanding any other provision of this Agreement that may be to the contrary, expressly are is intended to benefitbenefit the Company, and shall be enforceable bythe Surviving Corporation, each of the Indemnified Parties and their respective heirs and legal representatives.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any PersonCovered Persons, then, and in each such case, proper provision shall be made so that the binding on all successors and assigns of the Surviving Corporation or Parent, as and Purchaser and shall be enforceable by the case may be, shall succeed to Indemnified Parties and the obligations set forth in this Section 5.11Covered Persons.
Appears in 2 contracts
Samples: Merger Agreement (Lamela Luis E), Merger Agreement (Ramsay Youth Services Inc)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from From and after the Effective Time through the sixth anniversary of the date on which the Effective Time occursTime, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes of persons currently entitled to indemnification from the Company and rights to advancement the Company Subsidiary (and any other subsidiary formed after the date hereof with the written consent of expenses relating thereto now existing in favor of any Indemnified Party Parent) as provided in the articles their respective certificates of incorporation or bylaws by-laws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate Merger to the Indemnified Parties than such policy with respect to matters arising on or before assume, without further action, as of the Effective TimeTime any indemnification agreements of the Company in effect as of the date hereof; provided, however, that (i) those persons entitled to recovery pursuant to the terms of those insurance policies issued to Imperial Bancorp and Comerica Incorporated as set forth in Section 5.03(c) of the Company Disclosure Schedule (including any endorsements and/or replacements thereto, the "Insurance Policies") shall not be entitled to duplication of recovery under the Insurance Policies, on the one hand, and from Parent or the Surviving Corporation, on the other, and (ii) Parent and the Surviving Corporation shall be subrogated to the rights of those persons entitled to recover pursuant to the Insurance Policies; provided, that the timing and amount of any recovery under the Insurance Policies shall not affect Parent's or the Surviving Corporation's obligations pursuant to this Section 5.03. The parties agree to use commercially reasonable efforts to ensure that there is no duplication of recovery under the Insurance Policies and this Section 5.03. Subject to clauses (i) and (ii) of the preceding sentence, Parent also agrees to, or shall cause the Surviving Corporation to, advance expenses to any such person promptly upon receipt of an undertaking from such person that such expenses shall be repaid should it be ultimately determined that such person is not entitled to indemnification. In addition, from and 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 200% directors and officers of the last annual premium paid by Company who become directors or officers of Parent or any of its subsidiaries will be entitled to indemnification under Parent's or any of its subsidiaries' certificate of incorporation and by-laws (or comparable organizational documents), as the Company prior same may be amended from time to the date hereof time 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on accordance with their terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, Parent shall cause such policy to be maintained in full force and effect, for its full termapplicable law, and cause to all obligations thereunder other indemnity rights and protections as are afforded to be honored by the Surviving Corporationother directors and officers of Parent or any of its subsidiaries.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall will be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume the obligations set forth in this Section 5.115.03.
(c) Pursuant to the Executive Liability and Indemnification Polices Maintenance Agreement between Company and Comerica Incorporated, dated as the date hereof, the parties hereby acknowledge that the Company's directors and officers shall be insured for any acts of omissions occurring prior to the Effective Time pursuant to the Insurance Policies. Parent shall, or shall cause the Surviving Corporation, to make all deductible payments relating to claims under such Insurance Policies.
(d) The provisions of this Section 5.03 (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 2 contracts
Samples: Merger Agreement (Official Payments Corp), Merger Agreement (Tier Technologies Inc)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any director or employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or and shall cause the Surviving Corporation to, indemnify and hold harmless each present current (as of the Effective Time) and each former officer, director, manager officer or employee director of the Company and or any of its Subsidiaries (collectively, the “Indemnified Parties”), against all claimsany costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, liabilitiesclaims, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), damages or liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining related to (i) the fact that the such Indemnified Party is or was an officer, Parties’ service as a director, manager, employee, fiduciary officer or agent employee of the Company or any of its Subsidiaries or (ii) matters existing services performed by such Persons at the request of the Company or occurring its Subsidiaries at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)Time, whether asserted or claimed prior to, at or after the Effective Time, including the transactions contemplated by this Agreement, to the fullest extent permitted under applicable Law and provided as of the date hereof in the Company Charter and Constituent Documents or contractual arrangements of the Company Bylaws or its Subsidiaries existing as at of the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, Corporation to the fullest same extent permitted provided under applicable Law and the Company Charter and Company Bylaws Constituent Documents (or, as at relevant, those of the applicable Subsidiary of the Company) as of the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that this Agreement and any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) existing contractual arrangements of the Company Disclosure Letter and or its Subsidiaries. Notwithstanding anything to the contrary herein (but subject to any superior rights contained in effect immediately the Company Constituent Documents (or, as relevant, those of the applicable Subsidiary of the Company) or applicable indemnification agreements to which any Acquired Company is a party), prior to making any payment or advance in respect of the Effective Timeindemnification obligations set forth in this Section 5.9, the Person who is requesting such indemnification or advance shall agree to repay such payments or advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation . No Indemnified Party shall settle, compromise or consent to the entry of any judgment in any proceeding threatened or threatened action, suit, proceeding, investigation or claim (and in actual Action for which indemnification could be sought by such an Indemnified Party hereunder), hereunder unless Parent consents in writing to such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Partiesconsent.
(b) Except as may be required by applicable Law, Parent and the Company agree that for a period of six years from the Effective Time, all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles of incorporation or bylaws Company Constituent Documents (or comparable organizational documents) or, as relevant, those of the Company and its Subsidiaries Subsidiary) or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and for a period of six years from the Effective Time shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For Parent shall, in its sole discretion, either (i) cause the Surviving Corporation to continue to maintain in effect for a period of six years from the Effective TimeTime for the Persons who, Parent shall either cause to be maintained in effect as of the current policies date of this Agreement, are covered by the Company’s and its Subsidiaries’ directors’ and officers’ liability insurance policy (“D&O Insurance”), D&O Insurance with terms and fiduciary liability insurance maintained by conditions (including scope and coverage amounts) that are, taken as a whole, at least as favorable as provided in the Company Company’s and its Subsidiaries or cause to be provided substitute Subsidiaries’ policies or purchase or cause as of the date hereof, or, if such insurance is unavailable, the Surviving Corporation to shall purchase a “tail policy,” in either case of at least the same coverage and amounts and containing best D&O Insurance reasonably available for such six-year period with terms and conditions (including scope and coverage amounts) that are not less advantageous are, taken as a whole, at least as favorable as provided in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s optionand its Subsidiaries’ policies as of the date hereof, the Company may purchase, or (ii) prior to the Effective Time, pay for and cause to be obtained, and to be effective at the Effective Time, one or more prepaid “tail” insurance policies for the Persons who, as of the date hereof, are covered by the Company’s existing D&O Insurance, with a six-year prepaid, non-revocable and non-cancellable tail policy on claims period of at least six years from the Effective Time with terms and conditions (in both amount including scope and scopecoverage amounts) providing substantially equivalent benefits that are, taken as a whole, at least as favorable as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company Company’s and its Subsidiaries with respect Subsidiaries’ existing D&O Insurance, for claims arising from facts or events that occurred prior to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If ; provided, that the maximum aggregate premium for such prepaid tail policy has been obtained by D&O Insurance that Parent shall be required to expend shall not exceed two hundred percent (200%) of the annual D&O Insurance premium for the Company’s current fiscal year, which annual premiums are set forth in Section 3.16 of the Company prior Disclosure Letter; and if such amount is not sufficient to purchase D&O Insurance in such maximum amount, then Parent shall purchase such amount of insurance with the Effective Time, best coverage reasonably available as can be purchased for an aggregate amount that is equal to two hundred percent (200%) of the annual premium for such policies for the Company’s current fiscal year. 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 CorporationCorporation to comply with its obligations under such policies for the full term of at least six years.
(d) Notwithstanding anything herein to the contrary, if any Action (whether arising before, at or after the Effective Time) with respect to which an Indemnified Party is entitled to indemnification is instituted against any Indemnified Party on or prior to the sixth anniversary of the Effective Time, then the provisions of this Section 5.11 5.9 shall continue in effect until the final disposition of such Action.
(e) 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. After the Effective Time, the obligations set forth in this Section 5.9 shall not be terminated, amended or otherwise modified in any manner that adversely affects any Indemnified Person (or any other Person who is a beneficiary under the D&O Insurance or the “tail” policy referred to in Section 5.9(c) (and their heirs and representatives)) without the prior written consent of such affected Indemnified Person or other Person who is a beneficiary under the D&O Insurance or the “tail” policy referred to in Section 5.9(c) (and their heirs and representatives). The provisions of this Section 5.11 5.9 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.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.115.9.
Appears in 2 contracts
Samples: Merger Agreement (Knowles Corp), Merger Agreement (Audience Inc)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree Stanley agrees that all rights to indemnification indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any the current or former directors or officers of Black & Decker and the Black & Decker Subsidiaries (each, an “Indemnified Party Person”) as provided in the articles of incorporation their respective charters or bylaws (or comparable organizational documents) and any indemnification or other similar agreements of Black & Decker or any of the Company and its Subsidiaries or Black & Decker Subsidiaries, in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and each case as in effect immediately prior to on the date of this Agreement, shall be assumed by Stanley in the Merger, without further action, as of the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effecteffect in accordance with their terms, and for a period of six years from and after the Effective Time shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified PartyPerson. Stanley shall cause (i) the Surviving Company to honor all such obligations and (ii) the charter and bylaws of the Surviving Company to contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of current and former directors and officers of Black & Decker and the Black & Decker Subsidiaries than are presently set forth in the Black & Decker Articles and Black & Decker Bylaws, and such provisions shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any person benefited by such provisions.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent Stanley or any of their respective its successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Person, then, and in each such case, Stanley shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to Stanley assume the obligations set forth in this Section 5.116.05 contemporaneous with the closing of any such consolidation, merger, transfer or conveyance.
(c) At or prior to the Effective Time, Stanley shall purchase a “tail” directors’ and officers’ liability insurance policy for Black & Decker and the Black & Decker 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 Black & Decker or the Black & Decker Subsidiaries in a form reasonably acceptable to Black & Decker 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 Black & Decker or the Black & Decker Subsidiaries. Stanley shall maintain such policy in full force and effect, and continue to honor the obligations thereunder.
(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, 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 Black & Decker and the Black & Decker Subsidiaries.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager officer or employee director of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”)disbursements, incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest same extent permitted that the Company is required to indemnify the applicable Indemnified Party under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, Corporation to the fullest same extent permitted that the Company is required to advance such expenses under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured affirmation or undertaking, if and only to the extent required by the NRS, Washington Act or the Company Charter, the Charter or Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable LawThe articles of incorporation and bylaws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification, Parent and the Company agree that all rights to indemnification advancement of expenses and exculpation from liabilities for acts of the Indemnified Parties with respect to matters existing or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided than are presently set forth in the articles of incorporation or bylaws (or comparable organizational documents) of the Company Charter and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effectBylaws, and which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect any right the rights thereunder of any such Indemnified PartyParties.
(c) For a period of six (6) years from the Effective Time, Parent shall either cause to be maintained in effect 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 purchase, a “tail policy,” in either case of at least the same coverage and amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200300% 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. All ; provided further, that if the Surviving Corporation purchases a “tail policy” and the coverage thereunder costs more than 300% of such policieslast annual premium, including any substitute policies, the Surviving Corporation shall purchase the maximum amount of coverage that can be issued by carriers rated A, XII or higher by A.M. Best Companyobtained for 300% of such last annual premium. At the Company’s option, and in lieu of the foregoing obligations of Parent, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable prepaid “tail policy policy” on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby; provided, however, that the Company shall not purchase a “tail policy” at a cost of more than 300% of the last annual premium of the Company’s directors’ and officers’ liability insurance policy; and provided, further, that in such case, the Company may purchase the maximum amount of coverage that can be obtained for 300% of such last annual premium. If such tail prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.11.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary As of the date on which the Effective Time occursAppointment Time, Parent shall, or shall cause the Surviving Corporation toCorporation, indemnify without further action, to assume the obligations with respect to all rights to indemnification and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, exculpation from liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and including advancement of expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Appointment Time, for acts or omissions occurring at or prior to the fullest extent permitted under applicable Law Appointment Time, which rights are now existing in favor of the current or former directors or officers of the Company and the Company Charter and Company Bylaws Subsidiaries as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred provided in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company CharterCertificate, the Company Bylaws, the organizational documents of any Company Subsidiary or any written indemnification agreement Contract between such directors or officers and the Company (or form thereofin each case, as in effect on the date hereof). Such obligations shall survive the Merger and shall continue in full force and effect in accordance with their terms. From the Effective Time through the sixth (6th) identified in Section 5.11(a) anniversary of the Company Disclosure Letter and in effect immediately prior to date on which the Effective TimeTime occurs, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the certificate of incorporation and bylaws of the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consentscontain, and (C) Parent shall cause the certificate of incorporation and bylaws of the Surviving Corporation shall cooperate in to contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent Company and the Company agree that all rights to indemnification and exculpation from liabilities Subsidiaries for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided than are presently set forth in the articles of incorporation or bylaws (or comparable organizational documents) of the Company Certificate and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effectBylaws, and such provisions shall not be amended, repealed repealed, or otherwise modified in any manner that would could adversely affect any right the rights thereunder of any Person benefited by such Indemnified Partyprovisions. Parent hereby unconditionally guarantees the obligations of the Surviving Corporation under this Section 6.05.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority substantially all of its properties and other assets to any Person, then, and in each such case, Parent shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to expressly assume the obligations set forth in this Section 5.116.05.
(c) Through the sixth (6th) anniversary of the date on which the Effective Time occurs, Parent shall cause the Surviving Corporation to 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 previously 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 policies of Parent containing terms with respect to coverage (including with respect 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.
(d) The provisions of this Section 6.05 (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 1 contract
Samples: Merger Agreement (Adams Respiratory Therapeutics, Inc.)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors, officers or employees of the Company as provided in the articles Company's Articles of incorporation Incorporation or bylaws (By-laws or comparable organizational documents) pursuant to agreements existing on the date of this Agreement shall be assumed by the Surviving Corporation, and Parent shall cause the Surviving Corporation to honor such obligations in accordance with the terms thereof, without further action, as of the Company Effective Time, and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries rights shall survive the Merger and continue in full force and effecteffort in accordance with their respective terms. Such rights, and the Surviving Corporation's and Parent's related obligations, shall not be amendedapply in all respects to the current or former directors, repealed officers and employees of each of its Subsidiaries as though such directors, officers and employees were entitled to indemnification rights pursuant to the Company's Articles of Incorporation or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained By-laws as in effect on the current policies of directors’ date hereof or pursuant to such agreements, as the case may be. In addition, from 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before the Effective Time; provided, however, that after the Effective Time, directors and officers of the Company who become or remain directors or officers of 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 200% of the last annual premium paid by the Company prior entitled 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. All such policies, same indemnity rights and protections (including any substitute policies, shall be issued those provided by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ ' and officers’ ' liability insurance insurance) as are afforded to other directors and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated herebyofficers of Parent. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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 Timeother provision hereof, the provisions of this Section 5.11 shall continue in effect until the final disposition of such Action.
(e7.6(a) 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 benefitbe for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective indemnified party, his or her heirs and legal representativeshis or her representatives and (ii) are in addition to, and not in 26 31 substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.
(fb) In the event that Parent shall, and shall cause the Surviving Corporation or Parent one of its Affiliates to, maintain in effect for six years after the Effective Time policies of directors' and officers' liability insurance equivalent in all material respects to those maintained by or on behalf of the Company and its Subsidiaries on the date hereof (and having coverage and containing terms and conditions which in the aggregate are not less advantageous to the persons currently covered by such policies as insured) with respect to claims arising from any actual or alleged wrongful act or omission occurring at or prior to the Effective Time for which a claim has not been made against any director or officer of the Company or any of their respective successors director or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority officer of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed Subsidiaries prior to the obligations set forth in this Section 5.11Effective Time.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, From and after the Closing Date until six (6) years from the Effective Time through Time, Parent shall cause the sixth anniversary Surviving Corporation to indemnify, defend and hold harmless, to the fullest extent permitted under applicable Law, the individuals who on or prior to the Closing Date were directors or officers of the date 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 on which or prior to the Effective Time occursClosing Date. Parent agrees that all rights of the Indemnitees to indemnification and exculpation from liabilities for acts or omissions occurring on or prior to the Closing Date as provided in the respective certificate of incorporation or bylaws or comparable organizational documents of the Company or any of its Subsidiaries as now in effect, and any indemnification agreements of the Company or any of its Subsidiaries shall survive the Closing Date and shall continue in full force and effect in accordance with their terms. Such rights shall not be amended or otherwise modified in any manner that would adversely affect the rights of the Indemnitees, unless such modification is required by Law or approved by such Indemnitees. In addition, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (pay or reimburse any expenses of any Indemnitee under this Section 7.7 as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and Law, provided that the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person person to whom expenses are advanced provides an unsecured undertaking, if and only undertaking to repay such advances to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Partiesapplicable Law.
(b) Except as may be required by applicable LawParent, Parent from and after the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to Closing Date, shall cause (i) the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles certificate of incorporation or and bylaws (or comparable organizational documents) documents 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 certificate of incorporation and bylaws of the Company and its Subsidiaries (ii) the certificate of incorporation and bylaws or in any indemnification agreement (or form thereof) identified in Section 5.11(a) comparable organizational documents of each Subsidiary of the Company Disclosure Letter Surviving Corporation to contain the current provisions regarding indemnification of directors, officers, employees and agents, which provisions in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and each case shall not be amended, repealed or otherwise modified in any a manner that would adversely affect any right the rights thereunder of any such Indemnified Partythe Indemnitees.
(c) For The Surviving Corporation shall have the right (but not the obligation) to control the defense of, including the investigation and any settlement or compromise of, any litigation, claim or proceeding (each, a period "Claim") relating to any acts or omissions covered under this Section 7.7 with counsel selected by the Surviving Corporation; provided, however, that the Indemnitee shall be permitted to participate in the defense of such Claim at his own expense.
(d) Each of the Surviving Corporation and the 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.
(e) The Surviving Corporation shall provide or maintain in effect for six (6) years from the Effective Time, Parent shall either cause to be maintained in effect through the current policies purchase of "run-off" coverage or otherwise, directors’ ' and officers’ ' and corporate liability insurance covering those individuals who are covered by the directors' and fiduciary officers' and corporate liability insurance maintained by policy or policies provided for directors and officers of the Company and its Subsidiaries or cause to be provided substitute policies or purchase or cause as of the Surviving Corporation to purchase a “tail policy,” in either case of at least date hereof (the same coverage and amounts and containing "Existing Policy") on terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties (other than such policy with respect to matters arising on or before minimum aggregate limits of liability for directors' and officers' and corporate liability insurance coverage) comparable in all respects to the Effective TimeExisting Policy and such coverage shall contain minimum aggregate limits of liability for directors' and officers' and corporate liability insurance coverage for directors and officers of the Company and its Subsidiaries with the amount of coverage at least equal to that of the Existing Policy and deductibles no larger than those customary for such type of insurance coverage; provided, however, that after the Effective Time, Parent shall if such "run-off" or other coverage is not be required to pay with respect to such insurance policies in respect of any one policy year annual premiums in excess of available at a cost not greater than 200% of the last annual premium premiums paid by the Company prior to as of the date hereof under the Existing Policy (the "Insurance Cap") (which premium the Company hereby represents and warrants is as set forth in respect of Schedule 7.7(e)), then the coverage Surviving Corporation shall be required to be obtained pursuant hereto, but in such case shall purchase obtain as much coverage as reasonably practicable is possible under substantially similar policies for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At annual premiums as do not exceed the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 CorporationInsurance Cap.
(df) 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.
(e) 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 7.7: (i) are intended to benefitbe for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective Indemnitee, his or her heirs and legal representativeshis 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.
(fg) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates or merges with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger merger; or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume all of the obligations thereof set forth in this Section 5.117.7.
(h) The obligations of the Surviving Corporation under this Section 7.7 shall not be terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 7.7 applies without the consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 7.7 applies shall be third party beneficiaries of this Section 7.7).
(i) 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, any of its Subsidiaries or any of its directors or officers, it being understood and agreed that the indemnification provided for in this Section 7.7 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company PlanFrom and after the Closing Date, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent Buyer shall, or and shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company Panadero Corp and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Timeindemnify, defend and hold harmless, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRSLaw, the Company Charter, the Company Bylaws, individuals who on or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective TimeClosing Date were directors, officers, managers, agents, stockholders or employees of Panadero Corp or any of its Subsidiaries (collectively, the “Indemnitees”) with respect to repay all acts or omissions by them in their capacities as such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor or taken at the Surviving Corporation shall settle, compromise request of Panadero Corp or consent any of its Subsidiaries at any time on or prior to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matterClosing Date. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree Buyer agrees that all rights of the Indemnitees to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party Closing Date as provided in the articles respective certificate of incorporation or bylaws (by-laws or comparable organizational documents) documents of the Company Panadero Corp and its Subsidiaries or as now in effect, and any indemnification agreement (agreements or form thereof) identified in Section 5.11(a) arrangements of the Company Disclosure Letter Panadero Corp and its Subsidiaries as now in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger Closing Date and shall continue in full force and effect, and effect in accordance with their terms. Such rights shall not be amended, repealed amended or otherwise modified in any manner that would adversely affect the rights of the Indemnitees, unless such modification is required by Law. Without limitation of the foregoing, in the event any right thereunder such Indemnitee is or becomes involved, in any capacity, in any action, proceeding or investigation in connection with any matter for which such Indemnitee is entitled to indemnification hereunder, including the transactions contemplated by this Agreement, occurring prior to, on or after the Closing, the Companies, from and after the Closing, shall pay, as incurred, such Indemnitee’s reasonable legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith. The Companies shall pay, within thirty (30) days after any request for advancement, all reasonable expenses, including attorneys’ fees, which may be incurred by any Indemnitee in enforcing this Section 7.6 or any action involving an Indemnitee resulting from the transactions contemplated by this Agreement.
(b) Buyer hereby acknowledges that certain Indemnitees may have rights to indemnification, advancement of expenses and/or insurance provided by persons other than Panadero Corp and its Subsidiaries (collectively, the “Indemnitors”). Buyer hereby agrees (i) that Buyer and the Companies are the indemnitors of first resort (i.e., their obligations to the Indemnitees are primary and any obligation of the Indemnitors are secondary), (ii) Buyer and the Companies shall be required to advance the full amount of expenses incurred by any Indemnitee and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement or Panadero Corp’s or its Subsidiaries’ respective certificate of incorporation, by-laws or comparable organizational documents (or any other agreement between Panadero Corp or any of the Subsidiaries and any such Indemnified PartyIndemnitee), without regard to any rights the Indemnitee may have against the Indemnitors, and (iii) Buyer and the Companies irrevocably waive, relinquish and release the Indemnitors from any and all claims against the Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. Buyer and the Companies further agree that no advancement or payment by an Indemnitor on behalf of an Indemnitee with respect to any claim for which an Indemnitee has sought indemnification from the Companies shall affect the foregoing and the applicable Indemnitor shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of the Indemnitee against the Companies. Buyer and the Indemnitees agree that the Indemnitors are express third party beneficiaries of the terms of this Section 7.6(b).
(c) For Buyer agrees that after the Closing, it shall not permit Panadero Corp or any of its Subsidiaries to amend, repeal or modify any provision in their respective certificate of incorporation, by-laws or comparable organizational documents in a period manner that would adversely affect the rights and/or exculpation or indemnification of six years from present or former directors, officers and managers, it being the Effective Timeintent of the parties that the directors, Parent officers and managers of Panadero Corp and its Subsidiaries prior to the Closing shall either continue thereafter to be entitled to such exculpation and indemnification to the fullest extent permitted under applicable Laws, and Buyer agrees to cause Panadero Corp and its Subsidiaries to perform in a timely manner and to otherwise honor such obligations in all respects.
(d) On or immediately prior to the Closing Date, Buyer and the Companies shall cause to be maintained in effect purchased a six (6) year tail insurance policy (the current policies cost of directorswhich shall be borne by Buyer) with respect to officers’ and officersdirectors’ liability insurance covering the Persons who are presently covered by Panadero Corp’s and fiduciary its Subsidiaries’ officers’ and directors’ liability insurance maintained by policy, with respect to actions and omissions occurring prior to the Company Closing, on terms which are at least as favorable as the terms of such insurance in effect for Panadero Corp and its Subsidiaries on the date hereof and from an insurer or cause insurers having claims paying ratings no lower than Panadero Corp’s and its Subsidiaries’ current insurer.
(e) The obligations of Buyer under this Section 7.6 shall not be terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 7.6 applies without the consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 7.6 applies shall be provided substitute policies express third party beneficiaries of this Section 7.6).
(f) Each Indemnitee shall have the right (but not the obligation) to control the defense of, including the investigation of, any litigation, claim or purchase or cause the Surviving Corporation to purchase proceeding (each, a “tail policy,” in either case of at least Claim”) relating to any acts or omissions covered under this Section 7.6 with counsel selected by the same coverage and amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before the Effective TimeIndemnitee; provided, however, that after (i) the Effective Time, Parent Companies shall be permitted to participate in the defense of such Claim at their own expense and (ii) the Companies shall not be liable for any settlement effected without its written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
(g) In the event any Claim is asserted or made, any determination required to pay be made with respect to such insurance policies in respect whether an Indemnitee’s conduct complies with the standards set forth under applicable Law, the applicable organizational documents of Panadero Corp or any one policy year annual premiums in excess of 200% of the last annual premium paid by the Company prior to the date hereof in respect Subsidiaries or any indemnification agreements or arrangements of Panadero Corp or any of the coverage required to be obtained pursuant heretoSubsidiaries, but in such as the case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policiesmay be, shall be issued made by carriers rated Aindependent legal counsel selected by such Indemnitee.
(h) Each of Buyer and the Indemnitee shall, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, Parent Buyer shall cause such policy to be maintained in full force and effectthe Companies to, for its full termcooperate, and cause all obligations thereunder 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 honored by the Surviving Corporationfurnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(d) 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.
(e) 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.
(fi) In the event that the Surviving Corporation or Parent Buyer, any Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger merger; or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, Buyer and such Company shall succeed to assume all of the obligations of Buyer and the Companies set forth in this Section 5.117.6.
Appears in 1 contract
Samples: Securities Purchase Agreement (Martin Marietta Materials Inc)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company Merger Sub agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at as of or prior to the Effective Time (and any rights relating to the advancement of expenses relating thereto now expenses) existing as of the date hereof in favor of any Indemnified Party the current or former directors, officers, employees or agents of the Company (each, an "Indemnitee") as provided in the articles Company Certificate and the Company By-laws and indemnification Contracts in existence as of incorporation or bylaws (or comparable organizational documents) of the date hereof between the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of them shall be assumed by the Company Disclosure Letter and in effect immediately prior to Surviving Corporation, without further action, as of the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effecteffect in accordance with their terms. Such rights shall not be amended, or otherwise modified in any manner that would adversely affect the rights of the Indemnitees, unless such modification is required by Law. In addition, the Surviving Corporation shall pay any related expenses of any Indemnitee under this Section 6.04(a) as incurred to the fullest extent permitted under applicable Law (including expenses incurred to determine whether indemnification or exculpation is available), provided that the person to whom expenses are advanced provides an undertaking to repay such advances to the extent required by applicable Law. Parent shall take any and all actions necessary to ensure that the Surviving Corporation complies with and honors the foregoing obligation as in effect on the date hereof, including providing funds, if necessary, to permit the Surviving Corporation to comply with its obligations under this Section 6.04(a).
(b) For a period of at least six (6) years after the Effective Time, Parent shall cause the certificate of incorporation and by-laws of the Surviving Corporation to contain provisions no less favorable with respect to the 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 Certificate and the Company By-laws, which provisions shall not be amended, repealed or otherwise modified in any a manner that would adversely affect any right the rights thereunder of any such Indemnified Partythe Indemnitees.
(c) For a period of six years from after the Effective Time, Parent shall, or shall either cause to be maintained in effect 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 to, obtain and amounts maintain director's and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy officers' liability insurance with respect to matters arising on acts, errors or before omissions occurring prior to the Effective TimeTime ("Run-Off Insurance"). Such Run-Off Insurance shall (i) solely be negotiated and implemented by the Parent or its agents, (ii) provide coverage for each person or entity covered by the Company's current directors and officers liability insurance policy as in effect on the date hereof, (iii) not be cancelable by the Parent, its agents or the Surviving Corporation during the six year term of such Run-Off Insurance and (iv) be no less favorable with respect to coverage terms and amounts in any material respect than the Company's current directors' and officers' liability insurance policy as in effect on the date hereof; provided, however, that after in no event shall Parent, any of its Subsidiaries or the Effective Time, Parent shall not Surviving Corporation be obligated or required to pay with respect to such aggregate premiums for insurance policies under this Section 6.04(c) in respect of any one policy year annual premiums coverage period in excess of 200150% of the last annual premium amount of the aggregate premiums paid by the Company prior to for the date hereof in respect of the coverage required to be obtained pursuant heretoperiod from November 1, but in such case shall purchase as much coverage as reasonably practicable 2006 to, and including, October 31, 2007, for such amount. All purpose (which premiums for such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable period are hereby represented and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained warranted by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated herebybe $17,000); provided that Parent shall nevertheless be obligated to provide such coverage in any annual coverage period as may be obtained for such 150% amount. If such prepaid tail policy has been obtained by the Company prior Subject to the Effective Timethis Section 6.04(c), Parent or its agents shall cause such have the right to substitute the insurance company providing the Company's current director's and officer's liability insurance policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Surviving Corporationwith another financially sound insurance company.
(d) 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.
(e) 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 6.04 are (i) intended to benefitbe for the benefit of, and shall will be enforceable by, each of the Indemnified Parties Indemnitee and their respective his or her heirs and legal representatives(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.
(fe) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such casecase as a condition precedent to the Surviving Corporation or any of its successors or assigns entering into such consolidation or merger, Parent shall cause proper provision shall to be made so that the successors successor and assigns assign of the Surviving Corporation or ParentCorporation, as the case may be, shall succeed to assumes the obligations set forth in this Section 5.116.04.
(f) The obligations of Parent and the Surviving Corporation under this Section 6.04 shall not be terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 6.04 applies without the consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 6.04 applies shall be third party beneficiaries of this Section 6.04).
Appears in 1 contract
Samples: Merger Agreement (Cimnet Inc/Pa)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all All rights to indemnification and exculpation from liabilities to the fullest extent possible for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now (including, without limitation, acts in connection with the transactions contemplated by this Agreement) existing in favor of any Indemnified Party the current or former directors or officers of the Company or each of its Subsidiaries as permitted under Pennsylvania Law as in effect on the date hereof and as provided in the their respective articles or certificates of incorporation or bylaws (or comparable organizational documents) will be assumed by ACIA and ACIA will be directly responsible for such indemnification (including the advancement by ACIA of expenses as incurred by an Indemnified Person to the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) fullest extent permitted under Pennsylvania Law), without further action, as of the Company Disclosure Letter and in effect immediately prior to the Effective Time between and such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and indemnification will continue indefinitely in full force and effect. In addition, from and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% directors and officers of the last annual premium paid by the Company prior who become or remain directors or officers of ACIA will be entitled 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. All such policies, same indemnity rights and protections (including any substitute policies, shall be issued those provided by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ ' and officers’ ' liability insurance insurance) as are afforded to other directors and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated herebyofficers of ACIA. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns ACIA (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys shall transfer all or a majority substantially all of its properties and assets asses to any Personindividual, then, and corporation or other entity then in each such case, proper provision provisions shall be made so that the successors and assigns assignees of the Surviving Corporation or Parent, as the case may be, ACIA shall succeed to assume all of the obligations set forth in this Section 5.115.5. Notwithstanding any other provision hereof, the provisions of this Section 5.5 (i) are intended to be for the benefit of, and will be enforceable -25- 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
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining Woolworth agrees to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and maintain in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that accordance with their terms all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors or officers of Sports Authority and its subsidiaries as provided in the articles their respective certificates of incorporation or bylaws by-laws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) agreements of the Company Disclosure Letter Sports Authority. In addition, from and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before the Effective Time; provided, however, that after the Effective Time, Parent shall not directors and officers of Sports Authority who become directors or officers of Woolworth will be required to pay with respect to such insurance policies in respect of any one policy year annual premiums in excess of 200% of the last annual premium paid by the Company prior entitled to the date hereof in respect same indemnity rights and protections as are afforded to other directors and officers of the coverage required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 CorporationWoolworth.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent Woolworth or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall will be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to Woolworth assume the obligations set forth in this Section 5.115.8.
(c) For four (4) years after the Effective Time, Woolworth shall provide to Sports Authority'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 Sports Authority'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 in no event shall Woolworth be required to expend more than 200% of the current amount expended by Sports Authority to maintain such coverage.
(d) The provisions of this Section 5.8 (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
Indemnification, Exculpation and Insurance. (a) Without limiting any additional Parent and Merger Sub agree that all rights that any employee may have under any agreement to exculpation and indemnification for acts or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or omissions occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)Time, whether asserted or claimed prior to, at or after the Effective TimeTime (including any matters arising in connection with the transactions contemplated by this Agreement), to now existing in favor of the fullest extent permitted under applicable Law current directors and officers of the Company Charter and Company Bylaws or its Subsidiaries as at provided in their respective articles of association, certificates of incorporation or bylaws (or comparable organization documents) or in any written indemnification agreement in effect as of the date hereofhereof shall survive the Merger and shall continue in full force and effect. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from shall (and Parent shall cause the Indemnified Party of a request therefor; providedSurviving Corporation to) indemnify, that 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 Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately time prior to the Effective Time, solely to the extent required by: (i) the Amended and Restated Articles of Incorporation or By-Laws (or equivalent organizational documents) of the Company or 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.
(b) Without limiting the provisions of Section 7.6(a), during the period ending on the sixth (6th) anniversary of the Effective Time, Parent shall: (i) indemnify and hold harmless each Indemnitee against and from any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent such claim, action, suit, proceeding or investigation arises out of or pertains to: (A) any action or omission or alleged action or omission in such Indemnitee's capacity as a director, officer or employee of the Company or any of its Subsidiaries or Affiliates; or (B) the Merger, this Agreement and any transactions contemplated hereby; and (ii) pay in advance of the final disposition of any such claim, action, suit, proceeding or investigation the expenses (including attorneys' fees) of any Indemnitee upon receipt of an undertaking by or on behalf of such Indemnitee to repay such advances amount if it is shall ultimately be determined that such Person Indemnitee is not entitled to indemnificationbe indemnified. Notwithstanding anything to the contrary contained in this Section 7.6(b) or elsewhere in this Agreement, (B) neither Parent nor the Surviving Corporation shall settle, (and Parent shall cause the Surviving Corporation not to) settle or compromise or consent to the entry of any judgment in or otherwise seek termination with respect to any proceeding or threatened claim, action, suit, proceeding, proceeding or investigation or claim (and in for which indemnification could may be sought by such Indemnified Party hereunder), under this Section 7.6(b) unless such settlement, compromise compromise, consent or consent termination includes an unconditional release of such Indemnified Party the applicable Indemnitee from all liability arising out of such claim, action, suit, proceedingproceeding or investigation.
(c) Prior to the Effective Time, investigation or claim or such Indemnified Party otherwise consentsthe Company shall use its commercially reasonable efforts to (and if the Company is unable to, and (C) Parent shall cause the Surviving Corporation shall cooperate in as of the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(bEffective Time to) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for obtain a six-year pre-paid "tail policy" covering acts or omissions occurring at or prior to the Effective Time and rights with respect to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect those persons who are currently covered by the current policies of the directors’ ' and officers’ liability insurance and fiduciary ' liability insurance maintained by the Company and its Subsidiaries or cause (the "Current D&O Policy") with such coverage levels not materially less favorable to be provided substitute policies or purchase or cause such indemnified persons than those of the Surviving Corporation to purchase a “tail policy,” in either case of at least the same coverage and amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before the Effective TimeCurrent D&O Policy; provided, however, that after the Effective Time, Parent (i) such "tail" insurance policies shall not be required to pay with respect to such insurance policies in respect require the payment of any one policy year an aggregate annual premiums premium in excess of 200% three hundred percent (300%) of the last aggregate annual premium most recently paid by the Company prior to the date hereof in respect to maintain the Current D&O Insurance (and if the annual premium of the such insurance coverage required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for exceeds such amount. All such policies, including any substitute policiesthe Company, Parent or the Surviving Corporation shall be issued by carriers rated A, XII or higher by A.M. Best Company. At obligated to obtain a policy with the Company’s optiongreatest coverage available for a cost not exceeding such amount) and (ii) prior to the Closing, the Company may purchaseshall not enter into any Contract for a "tail" policy without the prior written consent of Parent (which consent shall not be unreasonably withheld, prior conditioned or delayed). If the Company and/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 six-year prepaidperiod of at least six (6) years from and after the Effective Time the Current D&O Policy with levels of coverage no less favorable than that provided as of the date hereof, non-revocable or the Surviving Corporation shall, and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as Parent shall cause the current Surviving Corporation to, use commercially reasonable efforts to purchase comparable policies of directors’ ' and officers’ ' liability insurance for such six (6)-year period with levels of coverage no less favorable as provided under the Current D&O Policy as of the date hereof; provided, however, that neither Parent nor the Surviving Corporation shall be required to pay an aggregate annual premium for such policies of directors' and fiduciary officers' liability insurance maintained by in excess of three hundred percent (300%) of the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained aggregate annual premium most recently paid by the Company prior to the Effective Timedate hereof to maintain the Current D&O Insurance (and if the annual premium of such insurance coverage exceeds such amount, 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 or the Surviving CorporationCorporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount).
(d) Notwithstanding anything herein The Indemnitees 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 whom this Section 7.6 applies shall be third party beneficiaries of this Section 5.11 shall continue in effect until the final disposition of such Action.
(e) 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 otherwise7.6. The provisions of this Section 5.11 7.6 are intended to be for the benefit of each Indemnitee, his or her successors, heirs or representatives.
(e) Notwithstanding anything contained in Section 10.1 or Section 10.10 hereof to the contrary, this Section 7.6 shall survive the consummation of the Merger andindefinitely and shall be binding, notwithstanding any other provision jointly and severally, on all successors and assigns of this Agreement that may be to Parent, the contrary, expressly are intended to benefitSurviving Corporation and its Subsidiaries, and shall be enforceable by, each of by the Indemnified Parties Indemnitees and their respective successors, heirs and legal or representatives.
(f) . In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.117.6.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree agrees that all rights to indemnification and exculpation (including the advancement of expenses) from liabilities for acts or omissions occurring at or prior to the Effective Time and rights (including with respect to advancement of expenses relating thereto the transactions contemplated by this Agreement) existing now existing or at the Effective Time in favor of any Indemnified Party the current or former directors or officers of the Company as provided in the articles its Certificate of incorporation or bylaws Incorporation, its Bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and each as in effect immediately prior to on the date hereof) and indemnification agreements shall be assumed by the Surviving Corporation in the Merger, without further action, as of the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effecteffect without amendment, and shall not be amended, repealed modification or otherwise modified repeal in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For accordance with their terms for a period of not less than six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before after the Effective Time; provided, however, that after the Effective Timeif any claims are asserted or made within such six year period, Parent shall not be required all rights to pay with respect indemnification (and to such insurance policies advancement of expenses) hereunder in respect of any one policy year annual premiums in excess such claims shall continue, without diminution, until disposition of 200% 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 any and all such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 Corporationclaims.
(d) 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.
(e) 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.
(fb) In the event that Parent, the Surviving Corporation or Parent or any of their respective successors or assigns 47 41
(i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall will be made so that the successors and assigns of Parent or the Surviving Corporation or ParentCorporation, as the case may be, shall succeed to expressly assume the obligations set forth in this Section 5.117.06. In the event the Surviving Corporation transfers any material portion of its assets, in a single transaction or in a series of transactions, Parent will either guarantee the indemnification obligations referred to in Section 7.06(a) or take such other action to insure that the ability of the Surviving Corporation, legal and financial, to satisfy such indemnification obligations will not be diminished in any material respect.
(c) For six years after the Effective Time, Parent shall, unless Parent agrees in writing to guarantee the indemnification obligations set forth in Section 7.06(a), provide officers' and directors' 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 officers' and directors' liability insurance policy, or who becomes covered by such policy prior to the Effective Time, on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date hereof; provided that in satisfying its obligation under this Section 7.06(c) Parent shall not be obligated to pay premiums in excess of 200% of the amount per annum paid by the Company in its last full fiscal year; and provided further that Parent shall nevertheless be obligated to provide such coverage as may be obtained for such 200% amount. The Company represents that it paid officers' and directors' liability insurance premiums as set forth in Schedule 7.06(c).
(d) The provisions of this Section 7.06 (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 1 contract
Samples: Merger Agreement (Johnson & Johnson)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree Lucent agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors or officers of INS and its subsidiaries as provided in the articles their respective certificate of incorporation or bylaws by-laws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement agreements of INS (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and as each is in effect immediately prior to on the date hereof), the existence of which does not constitute a breach of this Agreement, shall be assumed by the Surviving Corporation in the Merger, without further action, as of the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effecteffect in accordance with their terms, and Lucent shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than honor all such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 Corporationrights.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, or otherwise dissolves the Surviving Corporation, then, and in each such case, Lucent shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.08.
(c) Lucent shall, at its option, for a period of not less than six years after the Effective Time, either (i) maintain INS's current directors' and officers' liability insurance covering acts or Parentomissions occurring prior to the Effective Time ("D&O Insurance") with respect to those persons who are currently covered by INS'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 by a reputable insurance company coverage no less favorable to such directors or officers, as the case may be, shall succeed than the D&O Insurance, in each case so long as the annual premium therefor would not be in excess of 200% of the last annual premium paid for the D&O Insurance prior to the obligations set forth in date of this Section 5.11.Agreement (such 200% amount the "Maximum Premium"
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company Sub agree that all rights to indemnification indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors or officers of the Company and its Subsidiaries as provided in the articles their respective certificate of incorporation or bylaws (or comparable organizational documents) and any indemnification or other agreements of the Company and or its Subsidiaries as in effect on the date of this Agreement and that (i) are filed with the Filed SEC Documents, (ii) are substantially in the same the form as the agreements filed with the Filed SEC Documents or in any indemnification agreement (or form thereofiii) identified are set forth in Section 5.11(a) 5.05 of the Company Disclosure Letter and shall be assumed by the Surviving Corporation in effect immediately prior to the Merger, without further action, at the Effective Time between such Indemnified Party Time, and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effecteffect in accordance with their terms, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 comply with and honor the same coverage and amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 Corporationforegoing obligations.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority of substantially all its properties and assets to any Personperson, or if Parent dissolves the Surviving Corporation, then, and in each such case, Parent shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume the obligations set forth in this Section 5.115.05.
(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 obtain such coverage, with respect to the entire six (6)-year period following the Effective Time, as may be obtained for such 300% amount. Notwithstanding the foregoing, if Parent fails to obtain, or cause to be obtained, such a “tail” insurance policy by the date that is ten (10) Business Days prior to the anticipated Closing Date, then the Company may obtain a “tail” insurance policy with effect from the Effective Time on the same terms set forth in the immediately preceding sentence; provided that the aggregate cost for such “tail” insurance policy with respect to the entire six (6)-year period following the Effective Time shall not exceed 300% of the aggregate premiums paid by the Company for the period in its most recent fiscal year for such purpose.
(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 1 contract
Samples: Merger Agreement (HashiCorp, Inc.)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from From and after the Effective Time through the sixth anniversary of the date on which the Effective Time occursTime, Parent Buyer shall, or shall cause the Surviving Corporation to, indemnify indemnify, defend and hold harmless each present (as of harmless, to the extent provided by the Company prior to the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring Persons who at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)were directors, whether asserted managing members, officers, employees, agents or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) stockholders of the Company Disclosure Letter and or any of the Subsidiaries, or were a Consultant (as defined in effect immediately the Management Agreement) or a member, manager, officer, fiduciary, employee or agent of a Consultant (collectively, the “Indemnitees”), with respect to all acts or omissions by them or taken at the request of the Company or any of the Subsidiaries in each case at or prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree Buyer agrees that all rights of the Indemnitees to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles Certificate of incorporation or bylaws (Incorporation, the Bylaws, or comparable organizational documents) documents of any of the Company Subsidiaries as now in effect, and its Subsidiaries or in any indemnification agreement (agreements or form thereof) identified in Section 5.11(a) arrangements of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries the Subsidiaries, shall survive the Merger Closing and shall continue in full force and effecteffect in accordance with their terms. Such rights shall not be amended, or otherwise modified in any manner that would adversely affect the rights of the Indemnitees, unless such modification is required by Law. In addition, from and after the Effective Time Buyer shall, or shall cause the Surviving Corporation to, advance any expenses (including fees and expenses of legal counsel) of any Indemnitee under this Section 6.6 (including in connection with enforcing the indemnity and other obligations referred to in this Section 6.6), as incurred to the extent provided by the Company prior to the Effective Time, provided that the person to whom expenses are advanced provides an undertaking to repay such advances to the extent required by applicable Law.
(b) Each of Buyer and Merger Sub hereby acknowledges that certain Indemnitees may have rights to indemnification, advancement of expenses and/or insurance provided by Persons other than the Company and the Subsidiaries (collectively, the “Indemnitors”). Buyer hereby agrees (i) that Buyer and the Surviving Corporation are the indemnitor of first resort (i.e., their obligations to the Indemnitees are primary and any obligation of the Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by any Indemnitee are secondary), (ii) subject to Section 6.6(a), Buyer and the Surviving Corporation shall be required to advance the full amount of expenses incurred by any Indemnitee and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement, the Certificate of Incorporation, the Bylaws, and certificate of incorporation, certificate of formation, bylaws, limited partnership agreement or limited liability company agreement or comparable organizational documents of any of the Subsidiaries (or any other agreement between the Company or any of the Subsidiaries and any such Indemnitee), without regard to any rights the Indemnitee may have against the Indemnitors, and (iii) Buyer and the Surviving Corporation irrevocably waive, relinquish and release the Indemnitors from any and all claims against the Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. Each of Buyer and the Surviving Corporation further agree that no advancement or payment by an Indemnitor on behalf of an Indemnitee with respect to any claim for which an Indemnitee has sought indemnification from the Surviving Corporation shall affect the foregoing and the applicable Indemnitor shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of the Indemnitee against the Surviving Corporation. Buyer and the Indemnitees agree that the Indemnitors are express third party beneficiaries of the terms of this Section 6.6(b).
(c) Buyer, from and after the Effective Time, shall, or shall cause the Surviving Corporation to, cause (i) the certificate of incorporation and bylaws 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 Certificate of Incorporation and the Bylaws and (ii) the certificate of incorporation and bylaws or comparable organizational documents of each Subsidiary 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 any a manner that would adversely affect any right the rights thereunder of any such Indemnified Partythe Indemnitees.
(cd) For Each 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 6.6 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, conditioned or delayed.
(e) 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 or any of the Subsidiaries or any indemnification agreements or arrangements of the Company or any of the Subsidiaries, as the case may be, shall be made by independent legal counsel selected by such Indemnitee.
(f) Each of Buyer and the Indemnitee shall, and Buyer shall cause the Surviving Corporation to, 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.
(g) Buyer shall, at its own expense, obtain a six (6) year “run-off” or “tail” policy for the Company and the Subsidiaries commencing on the Effective Time, and maintain such policy in effect for a period of six (6) years from after the Effective Time, Parent shall either cause with respect to be maintained in effect claims arising from or related to facts or events that occurred at or before the Effective Time, with reputable and financially sound carriers and with at least the same coverage and amounts as and containing terms and conditions that are no less advantageous than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its the Subsidiaries and Buyer shall provide evidence of such “run-off” or cause “tail” policy to be provided substitute policies or purchase or the Stockholders’ Representatives prior to the Effective Time and shall cause the Surviving Corporation and the Subsidiaries to purchase a “tail policy,” in either case of at least the same coverage and amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than maintain such policy with respect to matters arising on or before in effect for the full period of six (6) years after the Effective Time; provided, however, that after the Effective Time, Parent cost of such policy shall not be required to pay with respect to such insurance policies in respect of any one policy year annual premiums in excess of 200exceed 300% of the last annual premium paid by the Company prior to the date hereof in respect current cost of the coverage required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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 as of the Effective Time, the provisions of this Section 5.11 shall continue in effect until the final disposition of such Action.
(eh) 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 6.6: (i) are intended to benefitbe for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective Indemnitee, his or her heirs and legal 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.
(fi) In the event that Buyer, the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or merges into any other Person person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger merger; or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of Buyer and of the Surviving Corporation or Parent, as the case may be, shall succeed to assume all of the obligations of the Buyer and the Surviving Corporation set forth in this Section 5.116.6.
(j) The obligations of Buyer and the Surviving Corporation under this Section 6.6 shall not be terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 6.6 applies without the consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 6.6 applies shall be third party beneficiaries of this Section 6.6).
Appears in 1 contract
Samples: Merger Agreement (Am-Source, LLC)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto Date now existing in favor of any Indemnified Party the current or former directors and officers of IMC and its Subsidiaries or fiduciaries under benefit plans of IMC (the “IMC Covered Persons”) as provided in the articles of incorporation IMC Certificate or bylaws IMC Bylaws (in each case, as in effect on the date hereof) or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (existing on the date of this Agreement including, but not limited to, rights relating to advancement of expenses and indemnification rights to which such persons are entitled because they are serving as a director, officer, agent or form thereof) identified in Section 5.11(a) employee of another entity at the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company request of IMC or any of its Subsidiaries Subsidiaries, shall be assumed by the Surviving Corporation in the Merger, without further action, as of the Effective Date and shall survive the Merger and shall continue in full force and effecteffect in accordance with their terms. Newco shall indemnify and hold harmless, and provide advancement of expenses to, the IMC Covered Persons to the same extent such persons are indemnified or have the right to advancement of expenses as of the date hereof by IMC pursuant to the IMC Certificate and IMC Bylaws or any applicable indemnification agreement entered into prior to December 1, 2003 and to the fullest extent permitted under the DGCL and not expressly prohibited by the Xxxxxxxx-Xxxxx Act or other applicable Law; provided, however, that any determination required to be made with respect to whether an IMC Covered Person’s conduct complies with the standards set forth under the DGCL, the IMC Certificate or IMC Bylaws or any such agreement, as the case may be, shall not be amendedmade by independent legal counsel jointly selected by such IMC Covered Person and Newco; and provided, repealed or otherwise modified further, that nothing in this Section 9.06(a) shall impair any manner that would adversely affect any right thereunder rights of any such Indemnified PartyIMC Covered Person.
(cb) For a period of six years from after the Effective TimeDate, Parent Newco shall either cause to be maintained maintain in effect the IMC’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries in respect of acts or cause to be provided substitute policies omissions occurring at or purchase or cause the Surviving Corporation to purchase a “tail policy,” in either case of at least the same coverage and amounts and containing terms and conditions that are not less advantageous in the aggregate prior to the Indemnified Parties than such Effective Date, (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby) covering the IMC Covered Persons currently covered by IMC’s directors’ and officers’ liability or fiduciary insurance policy (a correct and complete copy of which has been heretofore made available to Cargill), on terms with respect to matters arising such coverage and amount no less favorable than those of such policy in effect on or before the Effective Timedate hereof; provided, however, that after the Effective TimeNewco may substitute therefor policies of Newco containing terms with respect to coverage and amount no less favorable to such IMC Covered Persons; provided further, Parent however, that in satisfying its obligation under this Section 9.06(b), Newco shall not be required obligated to pay with respect to such insurance policies in respect of any one policy year an annual premiums premium in excess of 200300% of the amount of the last annual premium paid by the Company IMC prior to the date hereof in respect of the hereof, it being understood and agreed that Newco shall nevertheless be obligated to provide such coverage required to as may be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such 300% amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(dc) Notwithstanding anything herein The covenants contained in this Section 9.06 are intended to be for the contrarybenefit of, if any Action (whether arising beforeand shall be enforceable by, at or after the Effective Time) is instituted against any Indemnified Party on or prior to the sixth anniversary each of the Effective TimeIMC Covered Persons and their respective heirs and legal representatives, the provisions of this Section 5.11 shall continue in effect until the final disposition of such Action.
(e) The indemnification provided for herein and shall not be deemed exclusive of any other rights to which an Indemnified Party IMC Covered Person is entitled, whether pursuant to Law, Contract 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.
(fd) In the event that the Surviving Corporation or Parent If Newco or any of their respective its successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys shall transfer all or a majority substantially all of its properties and assets to any Personindividual, corporation or other entity, then, and in each such case, proper provision provisions shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, Newco shall succeed to assume all of the obligations set forth in this Section 5.119.06.
Appears in 1 contract
Samples: Merger Agreement (Mosaic Co)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree Holdco each agrees that all rights to indemnification indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles of incorporation current or bylaws (former directors, officers or comparable organizational documents) employees of the Company and its Subsidiaries or as provided in their respective organizational documents and any indemnification agreement (or form thereof) identified in Section 5.11(a) other similar agreements of the Company Disclosure Letter and or any of its Subsidiaries, in each case as in effect immediately on the date of this Agreement, shall be assumed, at the at the Effective Time by the Surviving Company, and shall survive the Company Merger and continue in full force and effect in accordance with their terms.
(b) Following the Effective Time, the Surviving Company shall, and Parent and Holdco shall cause the Surviving Company to, (i) maintain in effect the provisions in its certificate of incorporation or bylaws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each individual who was prior to the date hereof or is as of the date of this Agreement, or who becomes prior to the Effective Time between such Indemnified Party and Time, a director or officer of the Company or any of its Subsidiaries shall survive or who is as of the Merger and continue in full force and effectdate of this Agreement, and shall not be amendedor who thereafter commences prior to the Effective Time, repealed serving at the request of the Company or otherwise modified in any manner that would adversely affect any right thereunder of any such its Subsidiaries as a director or officer of another Person, as applicable (each a “Company Indemnified Party”) with respect to facts or circumstances occurring at or prior to the Effective Time and (ii) to indemnify, defend and hold harmless each Company Indemnified Person with respect to facts or circumstances occurring at or prior to the Effective Time to the fullest extent permitted from time to time under Applicable Law (and pay the reasonable fees and expenses of counsel selected by the Company Indemnified Parties promptly after statements therefor are received and otherwise advance to such Company Indemnified Party upon request, reimbursement of documented expenses reasonably incurred (provided that the person to whom expenses are advanced provides an undertaking to repay such advance if it is determined by a final and non-appealable judgment of a court of competent jurisdiction that such person is not legally entitled to indemnification under Applicable Law)).
(c) In the event that Parent, Holdco the Surviving Company or any of its successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation, amalgamation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent, Holdco or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent, Holdco or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.04.
(d) For a period of six years from and after the Effective Time, Holdco and Parent shall cause the Surviving Company to either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and or its Subsidiaries or cause to be provided provide substitute policies or purchase or cause for the Surviving Corporation to purchase a “tail policy,” in either case of at least Company and its current and former directors and officers who are currently covered by the same directors’ and officers’ and fiduciary liability insurance coverage and amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% of the last annual premium paid currently maintained by the Company prior in either case, of not less than the existing coverage and having other terms not less favorable to the date hereof in respect of insured persons than the coverage required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company and its Subsidiaries with respect to matters 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); provided that in no event shall the Surviving Company, Parent or Holdco be required to pay an annual premium for such insurance in excess of 300% of the aggregate annual premium payable by the Company for such insurance policy for the fiscal year ended December 31, 2017 (the “Maximum Amount”); provided, however, that if such insurance can only be obtained at an annual premium in excess of the Maximum Amount, the Surviving Company, Parent or Holdco shall obtain the most advantageous policy of directors’ and officers’ insurance obtainable for an annual premium equal to the Maximum Amount. In lieu of such insurance, prior to the Closing Date the Company may, if it has received the prior written consent of Parent, purchase a “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, 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 the Company with respect to claims arising from facts or events that occurred on or before the Effective Time, covering without limitation . In the transactions contemplated hereby. If such prepaid tail policy has been obtained by event the Company prior purchases such tail coverage, the Surviving Company shall cease to have any obligations under the first sentence of this Section 6.04(d). For a period of six years from and after the Effective Time, Parent the Surviving Company shall cause maintain such policy to be maintained policies in full force and effect, for its full term, and cause all continue to honor the obligations thereunder to be honored by the Surviving Corporation.
(d) 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 Actionthereunder.
(e) The indemnification provided for herein From and after the Effective Time, Parent and Holdco shall not be deemed exclusive guarantee the prompt payment of any other rights to which an Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise. the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(f) The provisions of this Section 5.11 6.04 (i) shall survive the consummation of the Merger andMergers, notwithstanding any other provision of this Agreement that may be to the contrary, expressly (ii) are intended to benefitbe for the benefit of, and shall will be enforceable by, each of indemnified or insured party (including the Company Indemnified Parties and their respective Parties), his or her heirs and legal his or her representatives.
, and (fiii) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person and shall not be the continuing may have by contract or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.11otherwise.
Appears in 1 contract
Samples: Merger Agreement (WestRock Co)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any the current or former directors, officers or employees of the Company (the "Indemnified Party Parties") to the maximum extent as provided in the Company's articles of incorporation or bylaws (as the same now exists or comparable organizational documents) hereafter may be amended, but in the case of such amendment only to the extent such amendment permits broader rights), the Rhode Island Act (as the same now exists or hereafter may be amended, but in the case of such amendment only to the extent such amendment permits broader rights), or in separate indemnity agreements between the Company and its Subsidiaries or such indemnified parties, will be assumed by the Surviving Corporation and Parent will cause the Surviving Corporation to honor such obligations in any indemnification agreement (or form accordance with the terms thereof) identified in Section 5.11(a) , to the extent permitted by applicable law, without further action, as of the Company Disclosure Letter Effective Time, and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and rights will continue in full force and effecteffect in accordance with their respective terms. In addition, from and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% directors and officers of the last annual premium paid by the Company prior who become directors or officers of Parent will be entitled 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. All such policies, same indemnity rights and protections (including any substitute policies, shall be issued those provided by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ ' and officers’ ' liability insurance insurance) as are afforded to other directors and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated herebyofficers of Parent. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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 Timeother provision hereof, the provisions of this Section 5.11 shall continue in effect until the final disposition of such Action.
5.5 are (ei) 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 benefitbe for the benefit of, and shall will be enforceable by, each of the Indemnified Parties and their respective Party, his or her heirs and legal representativeshis 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.
(fb) In the event that Parent will, and will cause the Surviving Corporation to, maintain in effect for a period of six years after the Effective Time policies of directors' and officers' liability insurance equivalent in all material respects to those maintained by or on behalf of the Company on the date hereof (and having coverage and containing terms and conditions which in the aggregate are not less advantageous to the persons currently covered by such policies as insured) with respect to claims arising from any actual or alleged wrongful act or omission occurring prior to the Effective Time for which a claim has not been made against any director or officer of the Company and/or any director or officer of the Company Subsidiaries prior to the Effective Time; PROVIDED, HOWEVER, that if the aggregate premiums for such insurance exceeds 200% of the per annum rate of premium currently paid by the Company for such insurance on the date of this Agreement, then Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of will cause the Surviving Corporation to, and the Surviving Corporation will, provide the maximum coverage that will then be available at an aggregate premium equal to 200% of such rate, provided, further, however, that, notwithstanding such 200% limitation, such directors' and officers' coverage , or Parentequivalent "tail" or "discovery period" coverage, as will in any event be provided for a minimum of three years following the case may be, shall succeed to the obligations set forth in this Section 5.11Effective Time.
Appears in 1 contract
Samples: Merger Agreement (Network Six Inc)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, agrees to indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes of persons currently entitled to indemnification from the Company and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party its subsidiaries as provided in the articles their respective certificates of incorporation or bylaws by-laws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior ). Parent also agrees to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of advance expenses to any such Indemnified Party.
(c) For a period person promptly upon receipt of six years an undertaking from the Effective Timesuch person that such expenses shall be repaid should it be ultimately determined that such person is not entitled to indemnification. In addition, Parent shall either cause to be maintained in effect the current policies of directors’ from 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% directors and officers of the last annual premium paid by Company who become directors or officers of Parent or any of its subsidiaries will be entitled to indemnification under Parent's or any of its subsidiaries' certificate of incorporation and by-laws, as the Company prior same may be amended from time to the date hereof time 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on accordance with their terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, Parent shall cause such policy to be maintained in full force and effect, for its full termapplicable law, and cause to all obligations thereunder other indemnity rights and protections as are afforded to be honored by the Surviving Corporationother directors and officers of Parent or any of its subsidiaries.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall will be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume the obligations set forth in this Section 5.115.03.
(c) For six years after the Effective Time, Parent shall maintain in effect the Company'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 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; provided that Parent may substitute therefor policies of Parent or its subsidiaries containing terms with respect to coverage and amount no less favorable to such directors or officers; provided, further, that in no event shall Parent be required to pay aggregate premiums for insurance under this Section 5.03(c) in excess of 200% of the aggregate premiums paid by the Company in fiscal 1999 for such purpose.
(d) The provisions of this Section 5.03 (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: Agreement and Plan of Merger (Sterling Commerce Inc)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any director or employee may have under the Company Constituent Documents, any agreement or Company Plan, from and after the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs, Parent shall, or and shall cause the Surviving Corporation to, indemnify and hold harmless harmless, to the fullest extent permitted under applicable Law (and Parent Table of Contents shall also advance expenses as incurred to the fullest extent permitted under applicable Law, subject to the immediately following sentence), each present and each former officer or director of the Company or any of its Subsidiaries (as and each Person who may become an officer or director of the Company or a Company Subsidiary between the date of this Agreement and the Effective Time) and former officer(collectively, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claimsany costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, liabilitiesclaims, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), damages or liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining related to (i) the fact that the such Indemnified Party is or was an officer, Party’s service as a director, manager, employee, fiduciary officer or agent employee of the Company or any of its Subsidiaries or (ii) matters existing services performed by such persons at the request of the Company or occurring its Subsidiaries at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)Time, whether asserted or claimed prior to, at or after the Effective Time, including (i) the Merger and the Charter Amendment and the transactions contemplated by this Agreement and (ii) actions to enforce this Section 5.10 or any other indemnification or advancement right of any Indemnified Party. Notwithstanding anything to the fullest extent permitted under applicable Law and contrary herein (but subject to any superior rights contained in the Company Charter and Constituent Documents (or, as relevant, those of the applicable Subsidiary of the Company) or applicable indemnification agreements to which any Acquired Company Bylaws as at is a party), prior to making any advance in respect of the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred indemnification obligations set forth in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRSthis Section 5.10, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, Person who is requesting such advance shall agree to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor indemnification in respect of the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in matter for which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Partiesadvance was made.
(b) Except as may be required by applicable Law, Parent and the Company agree that for a period of six (6) years from the Effective Time, all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles Company Constituent Documents (or, as relevant, the organizational documents of incorporation or bylaws (or comparable organizational documentsany Company Subsidiary) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and for a period of six (6) years from the Effective Time shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from Prior to the Effective Time, the Company shall and, if the Company is unable to, Parent shall either cause the Surviving Corporation as of the Effective Time to, obtain and fully pay the premium for the extension of (i) the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies, and (ii) the Company’s existing fiduciary liability insurance policies, in each case for a claims reporting or discovery period of at least six (6) years from and after the Effective Time from one or more insurance carriers with the same or better credit rating as the Company’s insurance carrier as of the date hereof with respect to be maintained in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company (collectively, “D&O Insurance”) with terms, conditions, retentions 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 limits of liability that are at least the same coverage and amounts and containing terms and conditions that are not less advantageous in the aggregate as favorable to the Indemnified Parties than such policy insureds as the Company’s existing policies with respect to matters arising on any actual or before alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director or officer of the Company or any of its Subsidiaries by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective TimeTime (including in connection with this Agreement or the transactions or actions contemplated hereby); provided, however, that after in no event shall the Effective TimeCompany expend, nor shall Parent shall not or the Surviving Corporation be required to pay with respect expend, for such policies pursuant to such insurance policies in respect of any one policy year annual premiums this sentence an amount in excess of 200% of the last annual premium premiums currently paid by the Company prior to as of the date hereof in respect for such insurance as set forth on Section 5.10(c) of the coverage required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amountCompany Disclosure Letter. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, If the Company may purchase, prior and the Surviving Corporation for any reason fail to obtain such “tail” insurance policy as of the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect for a six-year prepaidperiod of at least six (6) years from and after the Effective Time the D&O Insurance in place as of the date hereof with terms, non-revocable conditions, retentions and non-cancellable tail policy on terms limits of liability that are at least as favorable to the insureds as provided in the Company’s existing policies as of the date hereof, or the Surviving Corporation shall, and conditions Parent shall cause the Surviving Corporation to, use reasonable best efforts to purchase comparable D&O Insurance for such six (6)-year period with terms, conditions, retentions and limits of liability that are at least as favorable as provided in both the Company’s existing policies as of the date hereof; provided, however, that in no event shall Parent or the Surviving Corporation be required to expend for such policies pursuant to this sentence an annual premium amount and scope) providing substantially equivalent benefits as in excess of 200% of the current policies annual Table of directors’ and officers’ liability insurance and fiduciary liability insurance maintained Contents premiums currently paid by the Company and its Subsidiaries with respect to matters arising as of the date hereof for such insurance as set forth on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by Section 5.10(c) of the Company prior to Disclosure Letter; and provided, further, that if the Effective Timeannual premiums of such insurance coverage exceed such amount, 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 CorporationCorporation shall obtain a policy with the greatest coverage reasonably available for a cost not exceeding such amount.
(d) Notwithstanding anything herein to the contrary, if any Action (whether arising before, at or after the Effective Time) with respect to which an Indemnified Party is entitled to indemnification is instituted against any Indemnified Party on or prior to the sixth (6th) anniversary of the Effective Time, then the provisions of this Section 5.11 5.10 shall continue in effect until the final disposition of such Action.
(e) The indemnification provided for herein shall not be deemed exclusive of of, and shall be in addition to, any other rights to which an Indemnified Party is entitled, whether under the organizational documents of any Acquired Company or pursuant to Law, Contract or otherwise. The provisions of this Section 5.11 5.10 shall survive the consummation of the Merger and, notwithstanding any other provision of this Agreement that may be to the contrary, expressly are from and after the Effective Time intended to benefit, and shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.115.10.
Appears in 1 contract
Samples: Merger Agreement (Sevcon, Inc.)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have From and after the Closing Date, Parent shall cause the Surviving Corporation to indemnify, defend and hold harmless, to the fullest extent permitted under any agreement applicable Law, the individuals who on or Company Plan, from prior to the Effective Time through the sixth anniversary Closing Date were directors or officers of the date 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 on which or prior to the Effective Time occursClosing Date. Parent agrees that all rights of the Indemnitees to indemnification and exculpation from liabilities for acts or omissions occurring on or prior to the Closing Date as provided in the respective certificate of incorporation or bylaws or comparable organizational documents of the Company or any of its Subsidiaries as now in effect, and any indemnification agreements of the Company or any of its Subsidiaries shall survive the Closing Date and shall continue in full force and effect in accordance with their terms. Such rights shall not be amended or otherwise modified in any manner that would adversely affect the rights of the Indemnitees, unless such modification is approved by such Indemnitees. In addition, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (pay or reimburse any expenses of any Indemnitee under this Section 7.7 as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and Law, provided that the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person person to whom expenses are advanced provides an unsecured undertaking, if and only undertaking to repay such advances to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Partiesapplicable Law.
(b) Except as may be required by applicable LawParent, Parent from and after the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to Closing Date, shall cause (i) the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles certificate of incorporation or and bylaws (or comparable organizational documents) documents 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 certificate of incorporation and bylaws of the Company and its Subsidiaries (ii) the certificate of incorporation and bylaws or in any indemnification agreement (or form thereof) identified in Section 5.11(a) comparable organizational documents of each Subsidiary of the Company Disclosure Letter Surviving Corporation to contain the current provisions regarding indemnification of directors, officers, employees and agents, which provisions in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and each case shall not be amended, repealed or otherwise modified in any a manner that would adversely affect any right the rights thereunder of any such Indemnified Partythe Indemnitees.
(c) For a period Each of the Surviving Corporation and the 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.
(d) The Surviving Corporation shall provide or maintain in effect for six (6) years from the Effective Time, Parent shall either cause to be maintained in effect through the current policies purchase of “run-off” coverage or otherwise, directors’ and officers’ and corporate liability insurance covering those individuals who are covered by the directors’ and fiduciary officers’ and corporate liability insurance maintained by policy or policies provided for directors and officers of the Company and its Subsidiaries or cause as of the date hereof (the “Existing Policy”) on terms comparable in all respects to be provided substitute policies or purchase or cause the Surviving Corporation to purchase a “tail policy,” in either case Existing Policy and such coverage shall contain minimum aggregate limits of liability for directors’ and officers’ and corporate liability insurance coverage for directors and officers of the Company and its Subsidiaries with the amount of coverage at least equal to that of the same coverage Existing Policy and amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties deductibles no larger than those customary for such policy with respect to matters arising on or before the Effective Timetype of insurance coverage; provided, however, that after if such “run-off” or other coverage is not available at a cost not greater than 250% of the Effective Timeannual premiums paid as of the date hereof under the Existing Policy (the “Insurance Cap”), Parent then the Surviving Corporation shall not be required to pay with respect to such insurance policies in respect of any one policy year annual premiums in excess of 200% 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 obtain as much coverage as reasonably practicable is possible under substantially similar policies for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At annual premiums as do not exceed the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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 ActionInsurance Cap.
(e) 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 7.7: (i) are intended to benefitbe for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective Indemnitee, his or her heirs and legal representativeshis 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.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates or merges with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger merger; or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume all of the obligations thereof set forth in this Section 5.117.7.
(g) The obligations of the Surviving Corporation under this Section 7.7 shall not be terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 7.7 applies without the consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 7.7 applies shall be third party beneficiaries of this Section 7.7).
(h) 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, any of its Subsidiaries or any of its directors or officers, it being understood and agreed that the indemnification provided for in this Section 7.7 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company PlanParent agrees that, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or and shall cause the Surviving Corporation toCompany to assume the obligations associated with, indemnify and hold harmless each present (as all rights of the individuals who on or prior to the Effective Time) and former officer, director, manager Time were directors or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent officers of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRScollectively, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof“Indemnitees”) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles respective Certificate of incorporation Incorporation or bylaws Bylaws (or comparable organizational documents) of the Company and or any of its Subsidiaries or as now in effect, and any indemnification agreement (agreements or form thereof) identified in Section 5.11(a) arrangements of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effecteffect in accordance with their terms. Such rights shall not be amended, or otherwise modified in any manner that would adversely affect the rights of the Indemnitees; provided, however, that the Surviving Company shall have no obligation to provide such indemnification to the extent that it is ultimately determined that such indemnification is prohibited under applicable Law.
(b) Parent, from and after the Effective Time, shall cause (i) the Certificate of Formation and Limited Liability the Company Agreement of the Surviving Company 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 Certificate of Incorporation and Bylaws of the Company and (ii) the Certificate of Incorporation and Bylaws (or similar organizational documents) of each Subsidiary of the Surviving Company 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 any a manner that would adversely affect any right the rights thereunder of any such Indemnified Partythe Indemnitees.
(c) For a the six-year period of six years from commencing immediately after the Effective Time, Parent the Surviving Company shall either cause to be maintained maintain in effect the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries covering acts 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, omissions occurring prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as Time with respect to those persons who are currently covered by the current policies of Company’s directors’ and officers’ liability insurance policy on terms with respect to such coverage and fiduciary 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, however, that, if the Company’s current directors’ and officers’ liability insurance maintained expires, is terminated or is canceled, Parent shall, or shall cause the Surviving Company to, obtain directors’ and officers’ liability insurance covering such acts or omissions with respect to each such 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 cancellation; provided, further, that in no event shall the Surviving Company be required to expend per annum of coverage in excess of 150% of the annual premium currently paid by the Company and its Subsidiaries for such coverage (or such coverage as is available for 150% of such annual premium). Alternatively, with respect to matters arising on or before the consent of Parent, which consent shall not be unreasonably withheld, the Company may purchase “tail” insurance coverage covering a period of six years after the Effective Time, covering without limitation at a cost no greater than that set forth in the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior preceding sentence, that provides coverage identical in all material respects to the Effective Time, 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 Corporationcoverage described above.
(d) 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.
(e) 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 3.3.3 (i) are intended to benefitbe for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective Indemnitee, his or her heirs and legal representativeshis 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.
(fe) In the event that the Surviving Corporation or Parent Company or any of their respective its successors or assigns (i) consolidates with or merges into any other Person person and shall is not be the continuing or surviving corporation company or entity of such consolidation or merger or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, Company shall succeed to assume all of the obligations thereof set forth in this Section 5.113.3.3.
(f) 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 Company under this Section 3.3.3. 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 3.3.3 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) Without limiting any additional rights that any employee current or former officer or director may have under any agreement the Company Charter or Company PlanBylaws as in effect on the date of the Original Agreement, from the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, shall indemnify and hold harmless each present current (as of the Effective Time) and each former officer, director, manager or employee officer and director of the Company from and its Subsidiaries against any and all loss and liability suffered and expenses (the “Indemnified Parties”including attorneys’ fees), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), amounts paid in settlement reasonably incurred by such person in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party indemnified Person is or was an officer, director, manager, employee, employee or fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would be permitted under applicable Law and required or permitted under the Company Charter and or Company Bylaws (or, as relevant, those of the applicable Subsidiary of the Company) as at the date hereofof the Original Agreement. In the event of any such Action, (A) each Indemnified Party indemnified Person shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, Corporation to the fullest extent that the Company would be permitted under applicable Law and the Company Charter and or Company Bylaws as at the date hereofof the Original Agreement. Notwithstanding anything to the contrary herein (but subject to any superior rights contained in the Company Charter or Company Bylaws (or, within 10 Business Days as relevant, those of receipt the applicable Subsidiary of the Company) or applicable indemnification agreements to which the Company or its Subsidiaries, as applicable, is a party), prior to making any payment or advance in respect of the indemnification obligations set forth in this Section 6.8, the Person who is requesting such advance shall provide a written affirmation by Parent such Person of a good faith belief that the criteria for indemnification set forth under applicable Law have been satisfied and a written undertaking by such Person to repay all amounts so paid or reimbursed by the Surviving Corporation from the Indemnified Party of a request therefor; providedCorporation, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that the criteria for indemnification have not been satisfied in connection with any threatened, pending, or completed civil, criminal, administrative, arbitration or investigative proceeding to which such Person is, or is not entitled threatened to indemnificationbe, (B) neither Parent nor made a party by reason of the Surviving Corporation former or present official capacity of such Person. No such indemnified Person shall settle, compromise or consent to the entry of any judgment in any proceeding threatened or threatened action, suit, proceeding, investigation or claim (and in actual Action for which indemnification could be sought by such Indemnified Party hereunder), indemnified Person hereunder unless Parent consents in writing to such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action(which consent shall not be unreasonably withheld, suit, proceeding, investigation conditioned or claim delayed). Surviving Corporation agrees to continue and not to repeal or such Indemnified Party otherwise consentsmodify, and (C) agree to include, to the extent permitted by applicable Law, in the charter documents for the Surviving Corporation shall cooperate Corporation, exculpatory provisions currently existing in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable Company Charter (or their substantial equivalent) eliminating personal liability for the obligation to provide indemnification Company’s directors to the Indemnified Partiesextent permissible under the CGCL.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six (6) years from after the Effective Time, Parent shall either cause to be maintained in effect the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained covering each Person currently covered 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance policies (correct and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect complete copies of which have been heretofore made available to matters arising on Parent) for acts or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company omissions occurring prior to the Effective Time; provided, that Parent shall cause may (i) substitute thereof policies of an insurance company the material terms of which, including coverage and amount, are no less favorable in any material respect to such policy directors and officers than the Company’s existing policies as of the date of the Original Agreement or (ii) request that the Company obtain such extended reporting coverage under its existing insurance programs (to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Surviving Corporation.
(d) 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 effective as of the Effective Time); and provided, further, that in no event shall Parent or the provisions of Company be required to pay aggregate premiums for insurance under this Section 5.11 6.8(b) in excess of 150% of the amount of the aggregate premiums paid by the Company for policy year 2009-2010 for such purpose (which policy year 2009-2010 premiums are hereby represented and warranted by the Company to be as set forth in Section 6.8(b) of the Company Disclosure Letter), it being understood that Parent shall continue in effect until the final disposition of nevertheless be obligated to provide such Actioncoverage as may be obtained for such 150% amount.
(e) 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.
(fc) In the event that Parent, the Surviving Corporation or Parent or any of their respective successors or assigns shall (i) consolidates consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys transfer all or a majority of substantially all its properties and assets to any Person, then, and in each such case, Parent shall cause proper provision shall to be made so that the successors successor and assigns assign of Parent or the Surviving Corporation or Parent, as the case may be, shall succeed to assumes the obligations set forth in this Section 5.116.8.
(d) It is the intent that, with respect to all advancement and indemnification obligations under this Section 6.8, the Surviving Corporation shall be the indemnitor of first resort with respect to any advancement, reimbursement or indemnification obligations relative to any director or officer of the Company who may also be covered by insurance maintained by a Stockholder at or prior to the Effective Time. Without limiting the right of recovery against such director or officer if it shall be ultimately determined that he or she is not entitled to be indemnified, neither Parent nor the Surviving Corporation shall have any right to seek contribution, indemnity or other reimbursement for any of its obligations under this Section 6.8 from any such Stockholder or its insurers.
(e) The provisions of this Section 6.8 shall survive consummation of the Merger and are intended to be for the benefit of, and will be enforceable by, each indemnified Person, his or her heirs and his or her legal representatives, and each such Person shall be an intended third party beneficiary of the provisions of this Section 6.8.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cardiogenesis Corp /CA)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from Each of Parent and the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent Surviving Entities shall, or and Parent shall cause the Surviving Corporation Entities to, indemnify assume and hold harmless each present (as of perform the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection obligations with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining respect to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities liabilities, including advancement of expenses, 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, managers, members or officers of OUTD, IM and their respective Subsidiaries that are existing, and any Indemnified Party as provided in the articles of incorporation person who becomes a director or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately officer prior to the Effective Time (each an “Indemnified Party”) as provided in the OUTD Organizational Documents, IM Organizational Documents, OUTD Subsidiary Organizational Documents or IM Subsidiary Organizational Documents, as applicable, or any indemnification Contract between such Indemnified Party Party, on the one hand, and OUTD, IM or their respective Subsidiaries, as applicable, on the Company or any other hand (in each case, as in effect on the date hereof), without further action, as of its Subsidiaries the Effective Time and such obligations shall survive the Merger Effective Time and shall continue in full force and effect, and shall not be amended, repealed or otherwise modified effect in any manner that would adversely affect any right thereunder of any such Indemnified Party.
accordance with their terms. For no less than six (c6) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before the Effective Time; provided, however, that after the Effective Time, Parent shall not be required cause the certificate of incorporation and bylaws (or similar organizational documents, as applicable) of the Surviving Entities and their Subsidiaries to pay contain provisions no less favorable with respect to such insurance policies indemnification, advancement of expenses and exculpation of present and former directors and officers of OUTD, IM and their respective Subsidiaries than are presently set forth in respect of any one policy year annual premiums in excess of 200% of the last annual premium paid by the Company prior to the date hereof in respect of the coverage required to be obtained pursuant heretoOUTD Organizational Documents, but in such case shall purchase IM Organizational Documents, OUTD Subsidiary Organizational Documents or IM Subsidiary Organizational Documents, as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 Corporationapplicable.
(d) 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.
(e) 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.
(fb) In the event that either Parent or any of the Surviving Corporation or Parent Entities or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority substantially all of its properties and other assets to any Person, then, and in each such case, Parent shall cause proper provision shall to be made so that the successors and assigns of Parent or the applicable Surviving Corporation or ParentCorporation, as the case may beapplicable, shall succeed to expressly assume the obligations set forth in this Section 5.116.12.
(c) Prior to the Effective Time, OUTD and IM may 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 OUTD’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 Entities, as applicable, to maintain such policies in full force and effect after the Effective Time; provided, however, that in satisfying its obligation under this Section 6.12(c), none of OUTD, IM or Parent shall pay more than 225% of the annual premium paid as of the date of this Agreement by OUTD 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, OUTD, IM 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, either OUTD 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 OUTD’s or IM’s existing insurance programs, as applicable) in effect OUTD’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 OUTD’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 OUTD’s or IM’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; provided, further, that in satisfying its obligation under this Section 6.12(c), none of OUTD, IM or Parent shall pay more than 225% per annum of the annual premiums paid as of the date of this Agreement by OUTD 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, OUTD, IM and Parent shall only be obligated to provide the maximum coverage as may be obtained for such aggregate amount.
(d) The provisions of this Section 6.12 (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. The obligations under this Section 6.12 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 6.12(c) (and their heirs and representatives)) without the prior written consent of such person.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any the current or former directors, officers or employees of the Company (the "Indemnified Party Parties") to the maximum extent as provided in the Company's articles of incorporation or bylaws (as the same now exists or comparable organizational documents) hereafter may be amended, but in the case of such amendment only to the extent such amendment permits broader rights), the Rhode Island Act (as the same now exists or hereafter may be amended, but in the case of such amendment only to the extent such amendment permits broader rights), or in separate indemnity agreements between the Company and such indemnified parties, will be assumed by the Surviving Corporation and Parent will cause the Surviving Corporation to honor such obligations in accordance with the terms thereof, to the extent permitted by applicable law, without further action, as of the Effective Time, and such rights will continue in full force and effect in accordance with their respective terms. In addition, from and after the Effective Time, directors and officers of the Company who become directors or officers of Parent will be entitled to the same indemnity rights and its Subsidiaries protections (including those provided by directors' and officers' liability insurance) as are afforded to other directors and officers of Parent. Notwithstanding any other provision hereof, the provisions of this Section 5.5 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) are in addition to, and not in substitution for, any other rights to indemnification agreement or contribution that any such person may have by contract or otherwise.
(b) Parent will, and will cause the Surviving Corporation to, maintain in effect for a period of six years after the Effective Time policies of directors' and officers' liability insurance equivalent in all material respects to those maintained by or form thereof) identified in Section 5.11(a) on behalf of the Company Disclosure Letter on the date hereof (and having coverage and containing terms and conditions which in effect immediately the aggregate are not less advantageous to the persons currently covered by such policies as insured) with respect to claims arising from any actual or alleged wrongful act or omission occurring prior to the Effective Time between such Indemnified Party and for which a claim has not been made against any director or officer of the Company and/or any director or any officer of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries or cause prior 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before the Effective Time; provided, however, that after if -------- ------- the Effective Time, Parent shall not be required to pay with respect to aggregate premiums for such insurance policies in respect of any one policy year annual premiums in excess of exceeds 200% of the last annual per annum rate of premium currently paid by the Company prior to for such insurance on the date hereof of this Agreement, then Parent will cause the Surviving Corporation to, and the Surviving Corporation will, provide the maximum coverage that will then be available at an aggregate premium equal to 200% of such rate, provided, further, however, that, notwithstanding such 200% limitation, such directors' and officers' coverage , or equivalent "tail" or "discovery period" coverage, will in respect any event be provided for a minimum of the coverage required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to three years following the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.11.
Appears in 1 contract
Samples: Merger Agreement (Saugatuck Capital Co LTD Partnership Iii)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from From and after the Effective Time through the sixth anniversary of the date on which the Effective Time occursClosing Date, Parent shall, or and shall cause the Surviving Corporation Entity to, indemnify indemnify, defend and hold harmless each present (as of harmless, to the Effective Time) and former officerfullest extent permitted under applicable Law, directorthe individuals who on or prior to the Closing Date were directors, manager managers or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent officers of the Company or any of its Subsidiaries (collectively, the “Indemnitees”) with respect to all acts or (ii) matters existing omissions by them in their capacities as such or occurring taken at the request of the Company or any of its Subsidiaries at any time prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matterClosing Date. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree agrees that all rights of the Indemnitees to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party Closing Date as provided in the articles respective certificate of incorporation formation of the Company or bylaws (LLC Agreement or comparable organizational documents) documents of the Company and any of its Subsidiaries or as now in effect, and any indemnification agreement (agreements or form thereof) identified in Section 5.11(a) arrangements of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries (which agreements and arrangements are set forth in Schedule 7.7) shall survive the Merger Closing Date and shall continue in full force and effecteffect in accordance with their terms. Such rights shall not be amended, or otherwise modified in any manner that would adversely affect the rights of the Indemnitees, unless such modification is required by Law. In addition, Parent shall, or shall cause the Surviving Entity to, pay or reimburse any expenses of any Indemnitee under this Section 7.7, as incurred to the fullest extent permitted under applicable Law, provided that the person to whom expenses are advanced delivers to the Surviving Entity a written affirmation of such person’s good faith belief that it has met the standard of conduct necessary for indemnification under applicable Law and a written undertaking to repay such advances to the extent required by applicable Law.
(b) Parent, from and after the Closing Date, shall cause (i) the organizational documents of the Surviving Entity to contain provisions no less favorable to the Indemnitees with respect to limitation of certain liabilities of directors, managers and officers and indemnification than are set forth as of the date of this Agreement in the certificate of incorporation and by-laws of the Company and (ii) the certificate of incorporation and by-laws or comparable organizational documents of each Subsidiary of Parent to contain the current provisions regarding indemnification of directors, managers and officers which provisions in each case shall not be amended, repealed or otherwise modified in any a manner that would adversely affect any right the rights thereunder of any such Indemnified Partythe Indemnitees.
(c) For a period Each of Parent and the Indemnitee shall cooperate, and cause their respective Affiliates to cooperate, in the defense of any litigation, claim or proceeding 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.
(d) The Surviving Entity shall provide or maintain in effect for six (6) years from the Effective Time, Parent shall either cause to be maintained in effect the current policies of directors’, managers’ and officers’ and corporate liability insurance covering those individuals who are covered by the directors’, managers’ and fiduciary officers’ and corporate liability insurance maintained by policy or policies provided for directors, managers and officers of the Company and its Subsidiaries or cause to be provided substitute policies or purchase or cause as of the Surviving Corporation to purchase a date hereof (the “tail policy,” in either case of at least the same coverage and amounts and containing Existing Policy”) on terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties (other than such policy with respect to matters arising on or before minimum aggregate limits of liability for directors’, managers’ and officers’ and corporate liability insurance coverage) comparable in all respects to the Effective TimeExisting Policy and such coverage shall contain minimum aggregate limits of liability for directors’, managers’ and officers’ and corporate liability insurance coverage for directors, managers and officers of the Company and its Subsidiaries with the amount of coverage at least equal to that of the Existing Policy and deductibles no larger than those customary for such type of insurance coverage; provided, however, that after the Effective Time, Parent Surviving Entity shall not be required to pay with respect to such insurance policies in respect of any one policy year annual premiums in excess of 200% 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. All such policiescoverage over and above what would be applicable for coverage that did not include former directors, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, managers and officers on a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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“claims made” basis.
(e) 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 7.7: (i) are intended to benefitbe for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective Indemnitee, his or her heirs and legal 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.
(f) In the event that Parent, the Surviving Corporation or Parent Entity or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger merger; or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, Parent shall succeed to assume all of the obligations thereof set forth in this Section 5.117.7.
(g) The obligations of Parent and the Surviving Entity under this Section 7.7 shall not be terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 7.7 applies without the consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 7.7 applies shall be third party beneficiaries of this Section 7.7).
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have From and after the Closing Date, Parent shall cause the Surviving Corporation to indemnify, defend and hold harmless, to the fullest extent permitted under any agreement applicable Law, the individuals who on or Company Plan, from prior to the Effective Time through the sixth anniversary Closing DaTe were directors or officers of the date 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 on which or prior to the Effective Time occursClosing Date. Parent agrees that all rights of the Indemnitees to indemnification and exculpation from liabilities for acts or omissions occurring on or prior to the Closing Date as provided in the respective certificate of incorporation or bylaws or comparable organizational documents of the Company or any of its Subsidiaries as now in effect, and any indemnification agreements of the Company or any of its Subsidiaries shall survive the Closing Date and shall continue in full force and effect in accordance with their terms. Such rights shall not be amended or otherwise modified in any manner that would adversely affect the rights of the Indemnitees, unless such modification is approved by such Indemnitees. In addition, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (pay or reimburse any expenses of any Indemnitee under this Section 7.7 as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and Law, provided that the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person person to whom expenses are advanced provides an unsecured undertaking, if and only undertaking to repay such advances to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Partiesapplicable Law.
(b) Except as may be required by applicable LawParent, Parent from and after the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to Closing Date, shall cause (i) the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles certificate of incorporation or and bylaws (or comparable organizational documents) documents 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 certificate of incorporation and bylaws of the Company and its Subsidiaries (ii) the certificate of incorporation and bylaws or in any indemnification agreement (or form thereof) identified in Section 5.11(a) comparable organizational documents of each Subsidiary of the Company Disclosure Letter Surviving Corporation to contain the current provisions regarding indemnification of directors, officers, employees and agents, which provisions in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and each case shall not be amended, repealed or otherwise modified in any a manner that would adversely affect any right the rights thereunder of any such Indemnified Partythe Indemnitees.
(c) For a period Each of the Surviving Corporation and the 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.
(d) The Surviving Corporation shall provide or maintain in effect for six (6) years from the Effective Time, Parent shall either cause to be maintained in effect through the current policies purchase of “run-off” coverage or otherwise, directors’ ' and officers’ ' and corporate liability insurance covering those individuals who are covered by the directors' and fiduciary officers' and corporate liability insurance maintained by policy or policies provided for directors and officers of the Company and its Subsidiaries or cause as of the date hereof (the “Existing Policy”) on terms comparable in all respects to be provided substitute policies or purchase or cause the Surviving Corporation to purchase a “tail policy,” in either case Existing Policy and such coverage shall contain minimum aggregate limits of liability for directors' and officers' and corporate liability insurance coverage for directors and officers of the Company and its Subsidiaries with the amount of coverage at least equal to that of the same coverage Existing Policy and amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties deductibles no larger than those customary for such policy with respect to matters arising on or before the Effective Timetype of insurance coverage; provided, however, that after if such “run-off” or other coverage is not available at a cost not greater than 250% of the Effective Timeannual premiums paid as of the date hereof under the Existing Policy (the “Insurance Cap”), Parent then the Surviving Corporation shall not be required to pay with respect to such insurance policies in respect of any one policy year annual premiums in excess of 200% 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 obtain as much coverage as reasonably practicable is possible under substantially similar policies for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At annual premiums as do not exceed the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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 ActionInsurance Cap.
(e) 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 7.7: (i) are intended to benefitbe for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective Indemnitee, his or her heirs and legal representativeshis 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.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates or merges with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger merger; or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume all of the obligations thereof set forth in this Section 5.117.7.
(g) The obligations of the Surviving Corporation under this Section 7.7 shall not be terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 7.7 applies without the consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 7.7 applies shall be third party beneficiaries of this Section 7.7).
(h) 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, any of its Subsidiaries or any of its directors or officers, it being understood and agreed that the indemnification provided for in this Section 7.7 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact Merger Sub agree that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent certificate of the Company or any incorporation and bylaws of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent contain provisions no less favorable with respect to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as the current or former directors or officers of the Company and its Subsidiaries than are provided in the articles Company’s and its Subsidiaries’ respective certificates of incorporation or bylaws (or comparable organizational documents) as of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) date of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effectthis Agreement, and which provisions shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For for a period of six years from the Effective TimeTime in any manner that would affect adversely the rights of individuals who were directors, Parent shall either cause to be maintained in effect the current policies officers, employees or agents of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries at or cause prior to the Effective Time, unless such modification shall be provided substitute policies or purchase or cause required by Law. Parent and Merger Sub further agree that any indemnification agreements of the Company (as in effect on the date of this Agreement) in favor of the Company’s directors and officers in the form filed as an exhibit to a Company SEC Report shall be assumed by the Surviving Corporation to purchase a “tail policy,” in either case of at least the same coverage and amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before Merger, without further action, at the Effective Time; provided, howeverand shall survive the Merger and shall continue in full force and effect in accordance with their terms, and such agreements shall not be modified for a period of six years from the Effective Time in any manner that would affect adversely the rights of individuals who were directors, officers, employees or agents of the Company and its Subsidiaries at or prior to the Effective Time, unless such modification shall be required by Law. From and after the Effective Time, Parent shall not be required cause the Surviving Corporation to pay with respect to and perform in a timely manner such insurance policies in respect of any one policy year annual premiums in excess of 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 Corporationindemnification obligations.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of substantially all its properties and assets to any Person, or if Parent dissolves the Surviving Corporation, then, and in each such case, Parent shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume the obligations set forth in this Section 5.116.5.
(c) From the Offer Closing through the sixth anniversary of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, 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 or the Surviving Corporation may (i) substitute therefor policies of any reputable insurance company or (ii) satisfy its obligation under this Section 6.5(c) by causing the Company to obtain, on or prior to the Closing Date, prepaid (or “tail”) directors’ and officers’ liability insurance policy at Parent’s expense, in each case, 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 6.5(c); provided further that Parent and the Surviving Corporation shall not be required to pay an annual premium for such insurance in excess of 300% of the annual premium currently paid by the Company for such insurance; and provided further that if the annual premium of such insurance coverage exceeds such amount, Parent or the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available, with respect to matters occurring prior to the Effective Time, for a cost not exceeding such amount.
(d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any individual who is now, or who has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, employee or agent of the Company, on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 6.5 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) The provisions of this Section 6.5 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. Parent shall pay all expenses, including reasonable attorneys’ fees, that may be incurred by the persons referred to in this Section 6.5 in connection with their successful enforcement of their rights provided in this Section 6.5.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company PlanFrom and after the Closing Date, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent Purchaser shall, or and shall cause the Surviving Corporation Company to, indemnify indemnify, defend and hold harmless each present (as of harmless, to the Effective Time) and former officerfullest extent permitted under applicable Law, directorthe individuals who on or prior to the Closing Date were directors, manager officers or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent employees of the Company or any of its Subsidiaries (collectively, the "Indemnitees") with respect to all acts or (ii) matters existing omissions by them in their capacities as such or occurring taken at the request of the Company or any of its Subsidiaries at any time prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereofClosing Date. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree Purchaser agrees that all rights of the Indemnitees to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party Closing Date as provided in the articles of incorporation or bylaws (or comparable respective organizational documents) documents of the Company and or any of its Subsidiaries or as now in effect, and any indemnification agreement (agreements or form thereof) identified in Section 5.11(a) arrangements of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger Closing Date and shall continue in full force and effecteffect in accordance with their terms. Such rights shall not be amended, or otherwise modified in any manner that would adversely affect the rights of the Indemnitees, unless such modification is required by Law. In addition, Purchaser shall, or shall cause the Company to, pay or reimburse any expenses of any Indemnitee under this Section 8.7, 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 to the extent required by applicable Law.
(b) Purchaser, from and after the Closing Date, shall cause (i) the organizational documents of the Company 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 organizational documents of the Company and (ii) the organizational documents of each Subsidiary of Purchaser 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 any a manner that would adversely affect any right the rights thereunder of any such Indemnified Partythe Indemnitees.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.11.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee current or former officer or director may have under any agreement the Company Charter or Company PlanBylaws as in effect on the date of this Agreement, from the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, shall indemnify and hold harmless each present current (as of the Effective Time) and each former officer, director, manager or employee officer and director of the Company from and its Subsidiaries against any and all loss and liability suffered and expenses (the “Indemnified Parties”including attorneys’ fees), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), amounts paid in settlement reasonably incurred by such person in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party indemnified Person is or was an officer, director, manager, employee, employee or fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would be permitted under applicable Law and required or permitted under the Company Charter and or Company Bylaws (or, as relevant, those of the applicable Subsidiary of the Company) as at the date hereof. In the event of any such Action, (A) each Indemnified Party indemnified Person shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, Corporation to the fullest extent that the Company would be permitted under applicable Law and the Company Charter and or Company Bylaws as at the date hereof. Notwithstanding anything to the contrary herein (but subject to any superior rights contained in the Company Charter or Company Bylaws (or, within 10 Business Days as relevant, those of receipt the applicable Subsidiary of the Company) or applicable indemnification agreements to which the Company or its Subsidiaries, as applicable, is a party), prior to making any payment or advance in respect of the indemnification obligations set forth in this Section 6.8, the Person who is requesting such advance shall provide a written affirmation by Parent such Person of a good faith belief that the criteria for indemnification set forth under applicable Law have been satisfied and a written undertaking by such Person to repay all amounts so paid or reimbursed by the Surviving Corporation from the Indemnified Party of a request therefor; providedCorporation, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that the criteria for indemnification have not been satisfied in connection with any threatened, pending, or completed civil, criminal, administrative, arbitration or investigative proceeding to which such Person is, or is not entitled threatened to indemnificationbe, (B) neither Parent nor made a party by reason of the Surviving Corporation former or present official capacity of such Person. No such indemnified Person shall settle, compromise or consent to the entry of any judgment in any proceeding threatened or threatened action, suit, proceeding, investigation or claim (and in actual Action for which indemnification could be sought by such Indemnified Party hereunder), indemnified Person hereunder unless Parent consents in writing to such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action(which consent shall not be unreasonably withheld, suit, proceeding, investigation conditioned or claim delayed). Surviving Corporation agrees to continue and not to repeal or such Indemnified Party otherwise consentsmodify, and (C) agree to include, to the extent permitted by applicable Law, in the charter documents for the Surviving Corporation shall cooperate Corporation, exculpatory provisions currently existing in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable Company Charter (or their substantial equivalent) eliminating personal liability for the obligation to provide indemnification Company’s directors to the Indemnified Partiesextent permissible under the CGCL.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six (6) years from after the Effective Time, Parent shall either cause to be maintained in effect the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained covering each Person currently covered 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance policies (correct and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect complete copies of which have been heretofore made available to matters arising on Parent) for acts or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company omissions occurring prior to the Effective Time; provided, that Parent shall cause may (i) substitute thereof policies of an insurance company the material terms of which, including coverage and amount, are no less favorable in any material respect to such policy directors and officers than the Company’s existing policies as of the date hereof or (ii) request that the Company obtain such extended reporting coverage under its existing insurance programs (to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Surviving Corporation.
(d) 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 effective as of the Effective Time); and provided, further, that in no event shall Parent or the provisions of Company be required to pay aggregate premiums for insurance under this Section 5.11 6.8(b) in excess of 150% of the amount of the aggregate premiums paid by the Company for policy year 2009-2010 for such purpose (which policy year 2009-2010 premiums are hereby represented and warranted by the Company to be as set forth in Section 6.8(b) of the Company Disclosure Letter), it being understood that Parent shall continue in effect until the final disposition of nevertheless be obligated to provide such Actioncoverage as may be obtained for such 150% amount.
(e) 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.
(fc) In the event that Parent, the Surviving Corporation or Parent or any of their respective successors or assigns shall (i) consolidates consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys transfer all or a majority of substantially all its properties and assets to any Person, then, and in each such case, Parent shall cause proper provision shall to be made so that the successors successor and assigns assign of Parent or the Surviving Corporation or Parent, as the case may be, shall succeed to assumes the obligations set forth in this Section 5.116.8.
(d) It is the intent that, with respect to all advancement and indemnification obligations under this
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from From and after the Effective Time through the sixth anniversary of the date on which the Effective Time occursTime, Parent shall, or shall cause the Surviving Corporation to, to indemnify and hold harmless each present (individual who is as of the date of this Agreement, or who becomes prior to the Effective Time) and former officer, director, manager a director or employee officer of the Company and or any of its Subsidiaries subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its subsidiaries as a director or officer of another person (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”)disbursements, incurred in connection with any Actionclaim, action, suit or proceeding, whether civil, criminal, administrative or investigative, arising out of or pertaining investigative (including with respect to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Indemnified Party is or was an officer or director of the Company or any of its subsidiaries or is or was serving at the request of the Company or any of its subsidiaries as a director or officer of another person or in respect of any acts or omissions in their capacities as such directors of officers occurring prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest same extent permitted under applicable Law and as such Indemnified Parties are indemnified as of the date of this Agreement by the Company Charter pursuant to the Company Certificate of Incorporation, the Bylaws of the Company or the governing or organizational documents of any subsidiary of the Company and Company Bylaws any indemnification agreements in existence as at of the date hereofof this Agreement. In the event of any such Actionclaim, action, suit or proceeding, (Ai) each Indemnified Party shall will be entitled to advancement of expenses incurred in the defense of any Action such claim, action, suit or proceeding from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from or Parent to the same extent as such Indemnified Party Parties are entitled to advance of a request thereforexpenses as of the date of this Agreement by the Company pursuant to the Company Certificate of Incorporation, the Bylaws of the Company or the governing or organizational documents of any subsidiary of the Company; provided, provided that any Person person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRSDGCL, the Company CharterCertificate of Incorporation or the Bylaws of the Company, the Company Bylaws, or and any indemnification agreement (or form thereof) identified agreements in Section 5.11(a) existence as of the Company Disclosure Letter and in effect immediately prior to the Effective Timedate of this Agreement, to repay such advances if it is ultimately determined that such Person person is not entitled to indemnification, indemnification and (Bii) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consentsshall, and (C) the Surviving Corporation shall cause its subsidiaries to, cooperate in the defense of any such matter. In the event that Parent and or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, Parent and/or the Surviving Corporation, as applicable, shall cause proper provision to be jointly made so that the successors and severally liable for assigns of Parent and/or the obligation to provide indemnification to Surviving Corporation, as applicable, assume the Indemnified Partiesobligations set forth in this Section 6.4.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from and after the Effective Time, Parent the Surviving Corporation shall either cause to be maintained in effect 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 any of their subsidiaries or provide substitute policies or purchase or cause polices for of not less than the Surviving Corporation to purchase a “tail policy,” in either case of at least the same existing coverage and amounts and containing have other terms and conditions that are not less advantageous in the aggregate favorable to the Indemnified Parties than such policy insured persons with respect to matters claims arising from facts or events that occurred on or before the Effective Time; provided, however, except that after in no event shall Parent or the Effective Time, Parent shall not Surviving Corporation be required to pay with respect to such insurance policies (or substitute insurance policies) of the Company in respect of any one policy year annual premiums in excess of 200more than 300% of the last annual premium paid payable by the Company for such insurance for the prior twelve months (the “Maximum Amount”), and if Parent or the Surviving Corporation is unable to obtain the insurance required by this Section 6.4 it shall obtain as much comparable insurance as possible for the years within such six-year period for an annual premium equal to the date hereof Maximum Amount, in respect of each policy year within such period; provided that in lieu of the coverage required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s optionforegoing, the Company may purchase, obtain at or prior to the Effective Time, Time a six-year prepaid, non-revocable “tail” policy under the Company’s existing directors and non-cancellable tail officers insurance policy on terms providing equivalent coverage to that described in the preceding sentence if and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Timeextent that the same may be obtained for an amount that, Parent shall cause such policy to be maintained in full force and effecton an annual basis, for its full term, and cause all obligations thereunder to be honored by does not exceed the Surviving CorporationMaximum Amount.
(dc) 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.
(e) 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 6.4 (i) shall survive the consummation of the Merger andMerger, notwithstanding any other provision of this Agreement that may be to the contrary, expressly (ii) are intended to benefitbe for the benefit of, and shall will be enforceable by, each of indemnified or insured party (including the Indemnified Parties and their respective Parties), his or her heirs and legal his or her representatives.
, and (fiii) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into are in addition to, and not in substitution for, any other Person and shall not be the continuing rights to indemnification or surviving corporation contribution that any such person may have by contract or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.11otherwise.
Appears in 1 contract
Samples: Merger Agreement (IHS Inc.)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee current or former officer or director may have under any agreement the Company Charter or Company PlanBylaws as in effect on the date of this Agreement, from the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, shall indemnify and hold harmless each present current (as of the Effective Time) and each former officer, director, manager or employee officer and director of the Company from and its Subsidiaries against any and all loss and liability suffered and expenses (the “Indemnified Parties”including attorneys’ fees), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), amounts paid in settlement reasonably incurred by such person in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party indemnified Person is or was an officer, director, manager, employee, employee or fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would be permitted under applicable Law and required or permitted under the Company Charter and or Company Bylaws (or, as relevant, those of the applicable Subsidiary of the Company) as at the date hereof. In the event of any such Action, (A) each Indemnified Party indemnified Person shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, Corporation to the fullest extent that the Company would be permitted under applicable Law and the Company Charter and or Company Bylaws as at the date hereof. Notwithstanding anything to the contrary herein (but subject to any superior rights contained in the Company Charter or Company Bylaws (or, within 10 Business Days as relevant, those of receipt the applicable Subsidiary of the Company) or applicable indemnification agreements to which the Company or its Subsidiaries, as applicable, is a party), prior to making any payment or advance in respect of the indemnification obligations set forth in this Section 6.8, the Person who is requesting such advance shall provide a written affirmation by Parent such Person of a good faith belief that the criteria for indemnification set forth under applicable Law have been satisfied and a written undertaking by such Person to repay all amounts so paid or reimbursed by the Surviving Corporation from the Indemnified Party of a request therefor; providedCorporation, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that the criteria for indemnification have not been satisfied in connection with any threatened, pending, or completed civil, criminal, administrative, arbitration or investigative proceeding to which such Person is, or is not entitled threatened to indemnificationbe, (B) neither Parent nor made a party by reason of the Surviving Corporation former or present official capacity of such Person. No such indemnified Person shall settle, compromise or consent to the entry of any judgment in any proceeding threatened or threatened action, suit, proceeding, investigation or claim (and in actual Action for which indemnification could be sought by such Indemnified Party hereunder), indemnified Person hereunder unless Parent consents in writing to such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action(which consent shall not be unreasonably withheld, suit, proceeding, investigation conditioned or claim delayed). Surviving Corporation agrees to continue and not to repeal or such Indemnified Party otherwise consentsmodify, and (C) agree to include, to the extent permitted by applicable Law, in the charter documents for the Surviving Corporation shall cooperate Corporation, exculpatory provisions currently existing in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable Company Charter (or their substantial equivalent) eliminating personal liability for the obligation to provide indemnification Company's directors to the Indemnified Partiesextent permissible under the CGCL.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six (6) years from after the Effective Time, Parent shall either cause to be maintained in effect the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained covering each Person currently covered 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance policies (correct and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect complete copies of which have been heretofore made available to matters arising on Parent) for acts or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company omissions occurring prior to the Effective Time; provided, that Parent shall cause may (i) substitute thereof policies of an insurance company the material terms of which, including coverage and amount, are no less favorable in any material respect to such policy directors and officers than the Company’s existing policies as of the date hereof or (ii) request that the Company obtain such extended reporting coverage under its existing insurance programs (to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Surviving Corporation.
(d) 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 effective as of the Effective Time); and provided, further, that in no event shall Parent or the provisions of Company be required to pay aggregate premiums for insurance under this Section 5.11 6.8(b) in excess of 150% of the amount of the aggregate premiums paid by the Company for policy year 2009-2010 for such purpose (which policy year 2009-2010 premiums are hereby represented and warranted by the Company to be as set forth in Section 6.8(b) of the Company Disclosure Letter), it being understood that Parent shall continue in effect until the final disposition of nevertheless be obligated to provide such Actioncoverage as may be obtained for such 150% amount.
(e) 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.
(fc) In the event that Parent, the Surviving Corporation or Parent or any of their respective successors or assigns shall (i) consolidates consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys transfer all or a majority of substantially all its properties and assets to any Person, then, and in each such case, Parent shall cause proper provision shall to be made so that the successors successor and assigns assign of Parent or the Surviving Corporation or Parent, as the case may be, shall succeed to assumes the obligations set forth in this Section 5.116.8.
(d) It is the intent that, with respect to all advancement and indemnification obligations under this Section 6.8, the Surviving Corporation shall be the indemnitor of first resort with respect to any advancement, reimbursement or indemnification obligations relative to any director or officer of the Company who may also be covered by insurance maintained by a Stockholder at or prior to the Effective Time. Without limiting the right of recovery against such director or officer if it shall be ultimately determined that he or she is not entitled to be indemnified, neither Parent nor the Surviving Corporation shall have any right to seek contribution, indemnity or other reimbursement for any of its obligations under this Section 6.8 from any such Stockholder or its insurers.
(e) The provisions of this Section 6.8 shall survive consummation of the Merger and are intended to be for the benefit of, and will be enforceable by, each indemnified Person, his or her heirs and his or her legal representatives, and each such Person shall be an intended third party beneficiary of the provisions of this Section 6.8.
Appears in 1 contract
Samples: Merger Agreement (Cryolife Inc)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify From and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, the Parent will fulfill and honor and will cause the Surviving Corporation to fulfill and honor in all respects the fullest extent permitted under applicable Law and obligations of the Company Charter pursuant to any indemnification agreements between the Company and Company Bylaws as at any of its subsidiaries and their respective directors and officers (each, an "Indemnified Party") existing prior to the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the have no obligation to provide indemnification to indemnify an Indemnified Party thereunder in respect of claims, liabilities or damages arising out of a knowing and willful breach of a representation or covenant made by the Company in this Agreement caused by such Indemnified Parties.
(b) Except as may Party. From and after the Effective Time, such obligations shall be required by applicable Law, the joint and several obligations of Parent and the Company agree that all rights Surviving Corporation and, by executing this Agreement, Parent hereby assumes such obligations. The Articles of Incorporation and Bylaws of the Surviving Corporation will contain the same provisions with respect to indemnification and exculpation from liabilities elimination of 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 any Indemnified Party monetary damages as provided are set forth in the articles Articles of incorporation or bylaws (or comparable organizational documents) Incorporation and Bylaws of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effectCompany, and shall which provisions will not be amended, repealed or otherwise modified from the Effective Time in any manner that would adversely affect any right the rights thereunder of any such Indemnified Party.
(c) For a period individuals who, as of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% of the last annual premium paid by the Company prior to the date hereof in respect of or any time after the coverage required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, date hereof and prior to the Effective Time, a six-year prepaidwere directors, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies officers, employees or agents of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and or its Subsidiaries with respect to matters arising on or before the Effective Timesubsidiaries, covering without limitation the transactions contemplated hereby. If unless such prepaid tail policy has been obtained modification is required by the Company prior to the Effective Time, 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 Corporationlaw.
(db) Notwithstanding anything herein to the contrary, if This Section 6.6 will survive 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 termination of this Section 5.11 shall continue in effect until the final disposition of such Action.
(e) 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 Agreement and the consummation of the Merger and, notwithstanding any other provision of this Agreement that may at the Effective Time and will be to the contrary, expressly are intended to benefit, binding on all successors and shall be enforceable by, each assigns -38- 40 of the Indemnified Parties and their respective heirs and legal representatives.
(f) Parent or the Surviving Corporation. In the event that Parent or the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation corporations or entity entities of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Personmerger, then, then and in each such case, proper provision provisions shall be made so that the successors and assigns of the Parent or the Surviving Corporation shall assume the obligations of the Parent or Parentthe Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.116.6.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company PlanFor a period of six (6) years from and after the Closing Date, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent Buyer shall, or and shall cause the Surviving Corporation Company and the Company’s Subsidiaries to, indemnify indemnify, defend and hold harmless each present (as of harmless, to the Effective Time) and former officerfullest extent permitted under applicable Law, directorthe individuals who are now, manager or employee have been at any time prior to the date hereof, or who become prior to the Closing Date, directors or officers of the Company and and/or any of its Subsidiaries (collectively, the “Indemnified PartiesD&O Indemnitees”), against ) with respect to all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred acts or omissions by them in connection with any Action, whether civil, criminal, administrative their capacities as such or investigative, arising out of or pertaining to (i) taken at the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent request of the Company or any of its Subsidiaries or (ii) matters existing or occurring at any time on or prior to the Effective Time (including Closing Date; provided that neither the Company nor any of its Subsidiaries shall be liable for any indemnification pursuant to this Agreement and Section 7.6 arising from any settlement effected without the transactions and actions contemplated hereby)prior written consent of Buyer. Any D&O Indemnitee wishing to claim indemnification under this Section 7.6, whether asserted or claimed prior toupon learning of any claim for which it may seek indemnification hereunder, at or after the Effective Time, to the fullest extent permitted under applicable Law shall promptly notify Buyer and the Company Charter in writing; provided that the failure to so notify shall not affect the obligations of Buyer, the Company or its Subsidiaries except to the extent such failure to notify materially prejudices Buyer, the Company or its Subsidiaries. For a period of six (6) years from and Company Bylaws as at after the date hereof. In Closing Date, Buyer agrees that all rights of the event of any such Action, (A) each Indemnified Party shall be entitled D&O Indemnitees to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporationexpenses, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities Liabilities for acts or omissions occurring at on or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party Closing Date as provided in (x) the articles certificate of incorporation or the bylaws of the Company, or (z) the certificate of incorporation or bylaws (or comparable organizational documents) of the Company any of its Subsidiaries, in each case, as now in effect, and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) agreements of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or Company, and/or any of its Subsidiaries shall survive the Merger Closing Date and shall continue in full force and effecteffect in accordance with their terms. For a period of six (6) years from and after the Closing Date, and such rights shall not be amended, repealed amended or otherwise modified in any manner that would adversely affect any right thereunder the rights of any of the D&O Indemnitees, unless such Indemnified Partymodification is required by Law or approved by each such adversely affected D&O Indemnitee. In addition, Buyer shall, or shall cause the Company and its Subsidiaries, as the case may be, to advance, pay and/or reimburse any expenses of any D&O Indemnitee under this Section 7.6 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 to the extent required by applicable Law, the certificate of incorporation or bylaws (or similar organizational documents) of the Company or its Subsidiaries, or any indemnification agreements of the Company and/or any of its Subsidiaries, in each case as now in effect.
(b) Buyer, from and after the Closing Date and for six (6) years thereafter, shall cause (i) the certificate of incorporation and bylaws of the Company to contain provisions no less favorable to the D&O Indemnitees with respect to limitation of Liability, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the certificate of incorporation and the bylaws of the Company and (ii) the certificate of incorporation and bylaws (or comparable organizational documents) of each Subsidiary of the Company to contain provisions no less favorable with respect to limitation of Liability, advancement of expenses and indemnification of partners, members, directors, officers, employees and agents, than are set forth in such documents as of the date of this Agreement.
(c) For a period Buyer shall reasonably cooperate, and cause its Affiliates to reasonably cooperate, in the defense of six years from any claim that is subject to the Effective Timelimitation of liability, Parent advancement of expenses and/or indemnification as contemplated by this Section 7.6 and shall either provide access to properties and individuals as reasonably requested and furnish or cause to be maintained furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(d) The Buyer shall, and shall cause its Subsidiaries to, provide or maintain in effect for six (6) years from and after the current policies Closing Date, through the purchase of “run-off” coverage or otherwise, directors’ and officers’ and corporate liability insurance covering those individuals who are covered by the directors’ and fiduciary officers’ and corporate liability insurance maintained by policies provided for directors and officers of the Company and its Subsidiaries or cause to be provided substitute policies or purchase or cause as of the Surviving Corporation to purchase a date hereof (the “tail policy,” in either case Existing Policies”) on terms (including coverage, deductibles and limits of at least the same coverage and amounts and containing terms and conditions that are not less advantageous liability) which, in the aggregate aggregate, are no less favorable to such D&O Indemnitees as the Indemnified Parties than such policy with respect to matters arising on or before the Effective TimeExisting Policies; provided, however, that after if such “run-off” or other coverage is not available at a cost equal to or less than three hundred percent (300%) of 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 paid as of 200% of the last annual premium paid by the Company prior to the date hereof under the Existing Policies (the “Insurance Cap”) (which premiums are set forth in respect Section 7.6(d) of the coverage Company Disclosure Schedule), then the Buyer shall only be required to be obtained pursuant heretoto, but in such case and shall purchase cause its Subsidiaries to, obtain as much coverage as reasonably practicable is possible under substantially similar policies for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At annual premiums as do not exceed the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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 ActionInsurance Cap.
(e) The indemnification provided for herein obligations of Buyer, and the Company under this Section 7.6 shall not be deemed exclusive terminated or modified in such a manner as to adversely affect any D&O Indemnitee to whom this Section 7.6 applies without the consent of any other rights each affected D&O Indemnitee (it being expressly agreed that the D&O Indemnitees to which an Indemnified Party is entitled, whether pursuant to Law, Contract or otherwisewhom this Section 7.6 applies shall be third party beneficiaries of this Section 7.6). 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 7.6 (i) are intended to benefitbe for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective D&O Indemnitee, his, her or its heirs and legal representativeshis 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 Law, Contract or otherwise.
(f) In the event that the Surviving Corporation or Parent Buyer or any of their respective its successors or assigns (i) consolidates or merges with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger merger; or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made by Buyer and the Company so that the successors and assigns of the Surviving Corporation or ParentCompany, as the case may beapplicable, shall succeed to assume all of the obligations thereof set forth in this Section 5.117.6.
(g) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of the Company’s Subsidiaries or any of their respective directors or officers, it being understood and agreed that the indemnification provided for in this Section 7.6 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Samples: Stock Purchase Agreement (Envision Healthcare Corp)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company PlanFrom and after the Initial Holdco Merger Effective Time, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or Marriott shall cause the Surviving Corporation to, indemnify and hold harmless each present (individual who is as of the date of this Agreement, or who becomes prior to the Initial Holdco Merger Effective Time) and former officer, director, manager a director or employee officer of Starwood or any of its subsidiaries or who is as of the Company and date of this Agreement, or who thereafter commences prior to the Initial Holdco Merger Effective Time, serving at the request of Starwood, as applicable, or any of its Subsidiaries subsidiaries as a director or officer of another person (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”)disbursements, incurred in connection with any Actionclaim, action, suit or proceeding, whether civil, criminal, administrative or investigative, arising out of or pertaining investigative (including with respect to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Initial Holdco Merger Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Indemnified Party is or was an officer or director of Starwood or any of its subsidiaries or is or was serving at the request of Starwood or any of its subsidiaries as a director or officer of another person or in respect of any acts or omissions in their capacities as such directors or officers occurring prior to the Initial Holdco Merger Effective Time, whether asserted or claimed prior to, at or after the Initial Holdco Merger Effective Time, to the fullest same extent permitted under applicable Law and the Company Charter and Company Bylaws as at such Indemnified Parties are indemnified as of the date hereofof this Agreement by Starwood pursuant to the Starwood Charter, the Starwood By-laws or the governing organizational documents of any subsidiary of Starwood, as applicable, and any indemnification agreements with directors and officers of Starwood in existence as of the date of this Agreement and listed in Section 5.4(a) of the Starwood Disclosure Letter. In the event of any such Actionclaim, action, suit or proceeding, (Ai) each Indemnified Party shall will be entitled to advancement of expenses incurred in the defense of any Action such claim, action, suit or proceeding from Parent Marriott to the same extent as such Indemnified Parties are entitled to advance of expenses as of the date of this Agreement by Starwood pursuant to the Starwood Charter, the Starwood By-laws or the Surviving Corporationgoverning or organizational documents of any subsidiary of Starwood, to the fullest extent permitted under applicable Law as applicable, and the Company Charter any indemnification agreements with directors and Company Bylaws officers of Starwood in existence as at of the date hereof, within 10 Business Days of receipt by Parent or this Agreement and listed in Section 5.4(a) of the Surviving Corporation from the Indemnified Party of a request thereforStarwood Disclosure Letter; provided, provided that any Person person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRSApplicable Law, the Company CharterStarwood Charter or the Starwood By-laws or the governing or organizational documents of any Starwood subsidiary, the Company Bylawsas applicable, or and any indemnification agreement (or form thereof) identified agreements with directors and officers of Starwood in existence as of the date of this Agreement and listed in Section 5.11(a5.4(a) of the Company Starwood Disclosure Letter and in effect immediately prior to the Effective TimeLetter, to repay such advances if it is ultimately determined that such Person person is not entitled to indemnification, indemnification and (Bii) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consentsMarriott shall, and (C) the Surviving Corporation shall cause its subsidiaries to, cooperate in the defense of any such matter. Parent and In the event that Marriott, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, Marriott or the Surviving Corporation, as applicable, shall cause proper provision to be jointly made so that the successors and severally liable for assigns of Marriott or the obligation to provide indemnification to Surviving Corporation, as applicable, assume the Indemnified Partiesobligations set forth in this Section 5.4.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from and after the Effective TimeClosing Date, Parent Marriott shall either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by Starwood or any of its subsidiaries or provide substitute polices for not less than 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 existing coverage and amounts and containing have other terms and conditions that are not less advantageous in the aggregate favorable to the Indemnified Parties than such policy insured persons with respect to matters claims arising from facts or events that occurred on or before the Effective Time; provided, however, that after the Initial Holdco Merger Effective Time, Parent except that in no event shall not Marriott be required to pay with respect to such insurance policies (or substitute insurance policies) of Starwood in respect of any one policy year annual premiums in excess of 200more than 300% of the last annual premium paid payable by Starwood for such insurance for the Company year ending December 31, 2015 (the “Annual D&O Cap”), and if Marriott is unable to obtain the insurance required by this Section 5.4 for any year within such six-year period, it shall obtain as much comparable insurance as possible for such year for an annual premium equal to the Annual D&O Cap; provided that in lieu of the foregoing, Starwood may obtain at or 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Initial Holdco Merger Effective Time, Time a six-year prepaid, non-revocable “tail” policy under Starwood’s existing directors and non-cancellable tail officers insurance policy on terms providing equivalent coverage to that described in the preceding sentence if and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, Parent shall cause extent that the same may be obtained for an amount that is not in excess of the maximum aggregate amount otherwise payable for 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 Corporationsix-year period under this Section 5.4(b).
(dc) 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.
(e) 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 5.4 (i) shall survive the consummation of the Merger andCombination Transactions, notwithstanding any other provision of this Agreement that may be to the contrary, expressly (ii) are intended to benefitbe for the benefit of, and shall will be enforceable by, each of indemnified or insured party (including the Indemnified Parties and their respective Parties), his or her heirs and legal his or her representatives.
, and (fiii) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into are in addition to, and not in substitution for, any other Person and shall not be the continuing rights to indemnification or surviving corporation contribution that any such person may have by contract or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.11otherwise.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Marriott International Inc /Md/)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree Lucent agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors or officers of Ascend and its subsidiaries as provided in the articles their respective certificates of incorporation or bylaws by-laws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified agreements of Ascend, the existence of which does not constitute a breach of this Agreement, shall be assumed by the Surviving Corporation in Section 5.11(a) the Merger, without further action, as of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effecteffect in accordance with their terms, and Lucent shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than honor all such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 Corporationrights.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, Lucent shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume the obligations set forth in this Section 5.115.09.
(c) For six years after the Effective Time, Lucent shall maintain in effect Ascend'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 Ascend'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 Lucent may substitute therefor policies of Lucent 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, Lucent will obtain as much directors' and officers' 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 Ascend in 1998 on an annualized basis for such purpose and that in no event shall Lucent be required to pay aggregate premiums for insurance under this Section 5.09(c) in excess of 200% of amount of aggregate premiums paid by Ascend in 1998 on an annualized basis for such purpose.
(d) The provisions of this Section 5.09 (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
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining Fidelity agrees to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and maintain in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that accordance with their terms all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors or officers of the Company and its Subsidiaries as provided in the articles their respective certificates of incorporation or bylaws by-laws (or comparable organizational documents) and any indemnification agreements of the Company Company. In addition, from and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% directors and officers of the last annual premium paid by the Company prior who become directors or officers of Fidelity will be entitled to the date hereof in respect same indemnity rights and protections as are afforded to other directors and officers of the coverage required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 CorporationFidelity.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent Fidelity or any of their respective its successors or assigns (i) consolidates with or 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) except as required by applicable law in connection with the Merger, transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall will be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to Fidelity assume the obligations set forth in this Section 5.117.4.
(c) Immediately prior to the Closing, the Company shall purchase, from an insurer or insurers chosen by the Company, one or more single payment, run-off policies of 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 the Company's directors' and officers' liability insurance policies on terms with respect to such coverage and amount no less favorable than the terms of the current policies of the Company which policies are described on Section 4.19 of the Company Disclosure Schedule, such policy (or policies) to become effective at the Effective Time and to remain in effect for a period of six years after the Effective Time. If such coverage is unavailable, for six years after the Effective Time, Fidelity shall provide to the Company's 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 the Company's directors' and officers' liability insurance policies with insurance companies who are rated at least as highly as the insurance companies who currently provide the Company's directors' and officers' liability insurance as described on Section 4.19 of the Company Disclosure Schedule and on terms with respect to such coverage and amount no less favorable than those described on Section 4.19 of the Company Disclosure Schedule; provided, however, that if the aggregate annual premiums for such insurance at any time during such period shall exceed 200% of the per annum rate of premium paid by the Company as of the date hereof for such insurance, then Fidelity shall provide only such coverage as shall then be available at an annual premium equal to 200% of such rate.
(d) The provisions of this Section 7.4 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 (Fidelity National Financial Inc /De/)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify SCI and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company Merger Sub agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights to for advancement of expenses relating thereto expenses) now existing in favor of any Indemnified Party the current or former directors or officers of ITG and its Subsidiaries as provided in the articles their respective certificates of incorporation or bylaws by-laws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) other agreements of the Company Disclosure Letter and ITG as in effect immediately prior to on the date hereof shall be assumed by the Surviving Corporation in the Merger, without further action, consistent with applicable law, as of the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effect, and shall not be amended, repealed or otherwise modified effect in any manner that would adversely affect any right thereunder of any such Indemnified Partyaccordance with their terms.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, SCI shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume the obligations set forth in this Section 5.115.5.
(c) For six years after the Effective Time, SCI shall maintain in effect (i) ITG’s current directors’ and officers’ liability insurance covering acts or omissions occurring prior to the Effective Time covering each person currently covered by ITG’s directors’ and officers’ liability insurance policy and (ii) ITG’s current fiduciary liability insurance policies covering acts or omissions occurring prior to the Effective Time for employees who serve or have served as fiduciaries under or with respect to any ITG benefit plans, in each case on terms with respect to such coverage and amounts no less favorable than those of each such policy in effect on the date hereof; provided that SCI may substitute therefor policies of SCI with respect to coverage and amount no less favorable to such directors, officers or fiduciaries; provided however, that in no event shall SCI be required to pay aggregate premiums for insurance under this Section 5.5(c) in excess of 150% of the amount of the aggregate premiums paid by ITG in 2005 on an annualized basis for such purpose, provided that SCI shall nevertheless be obligated to provide such coverage as may be obtained for such 150% amount.
(d) SCI and Merger Sub agree that all rights to indemnification 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 or officers of SCI as provided in its certificate of incorporation or by-laws and any indemnification or other agreements of SCI as in effect on the date hereof shall survive the Merger and shall continue in full force and effect in accordance with their terms.
(e) In the event that SCI or any of its successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, SCI shall cause proper provision to be made so that its successors and assigns assume the obligations set forth in this Section 5.5.
(f) For six years after the Effective Time, SCI shall maintain in effect (i) SCI’s current directors’ and officers’ liability insurance covering acts or omissions occurring prior to the Effective Time covering Xx. Xxxxxx Xxxxxxx, and (ii) SCI’s current fiduciary liability insurance policies covering acts or omissions occurring prior to the Effective Time to the extent Xx. Xxxxxx Xxxxxxx serves or has served as a fiduciary under or with respect to any SCI benefit plans, in each case on terms with respect to such coverage and amounts no less favorable than those of each such policy in effect on the date hereof; provided that SCI may substitute therefor policies of SCI with respect to coverage and amount no less favorable to Xx. Xxxxxx Xxxxxxx; provided however, that in no event shall SCI be required to pay aggregate premiums for insurance under this Section 5.5(f) in excess of 150% of the amount of the aggregate premiums paid by SCI in 2005 on an annualized basis for such purpose, provided that SCI shall nevertheless be obligated to provide such coverage as may be obtained for such 150% amount.
(g) The provisions of this Section 5.5 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
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company Sub agree that all rights to indemnification indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors or officers of the Company and its Subsidiaries as provided in the articles their respective certificates of incorporation or bylaws (or comparable organizational documents) and any indemnification or other agreements of the Company as in effect on the date of this Agreement and its Subsidiaries or in any indemnification agreement (or form thereof) identified set forth in Section 5.11(a) 5.05 of the Company Disclosure Letter and shall be assumed by the Surviving Corporation in effect immediately prior to the Merger, without further action, at the Effective Time between such Indemnified Party Time, and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effecteffect in accordance with their terms, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 comply with and honor the same coverage and amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on foregoing obligations without termination 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 Corporationmodification thereof.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority of substantially all its properties and assets to any Personperson, or if Parent dissolves the Surviving Corporation then, and in each such case, Parent shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume the obligations set forth in this Section 5.115.05 and Parent shall cause such successors and assigns to comply with and honor the foregoing obligations without termination or modification thereof.
(c) Parent shall obtain, or cause to be obtained, as of the Effective Time a “tail” insurance policy with a claims period of six 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-year period; provided that in no event shall Parent or the Surviving Corporation 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 19, 2010 to, and including, July 18, 2011, for such purpose (which premiums for such period are hereby represented and warranted by the Company to be the amount set forth in Section 5.05(c) of the Company Letter); 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 for such insurance coverage exceeding in the aggregate the amount set forth in Section 5.05(c) of the Company Letter. If requested by Parent, the Company shall issue a broker of record letter naming the insurance broker selected by Parent to effect such runoff coverage, and the Company shall provide all cooperation and information reasonably requested by Parent and the selected insurance broker with respect to the procurement of such runoff coverage.
(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. The obligations of Parent and the Surviving Corporation under this Section 5.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any indemnified party to whom this Section 5.05 applies without the prior written consent of such affected indemnified party.
Appears in 1 contract
Samples: Merger Agreement (Netezza Corp)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional From and after the Closing Date, Parent agrees that all rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date individuals who on which or prior to the Effective Time occurs, Parent shall, Closing Date were directors or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent officers of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRScollectively, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof"D&O Indemnitees") identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party Closing Date as provided in the articles respective certificate of incorporation or bylaws (by-laws or comparable organizational documents) documents of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries as now in effect, and any indemnification agreements or arrangements of the Company or any of its Subsidiaries with respect to D& O Indemnitees shall survive the Merger Closing Date and shall continue in full force and effecteffect in accordance with their terms, and Parent shall cause the Surviving Corporation to comply with the provisions of such certificate of incorporation, by-laws, comparable organizational documents or other indemnification agreements or arrangements. Such rights shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder the rights of any the D&O Indemnitees, unless such Indemnified Party.modification is required by Law. 50
(cb) For Each D&O 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 period of six years from the Effective Time, Parent shall either cause "Claim") relating to be maintained in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained any acts or omissions covered under this Section 8.7 with counsel selected 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before the Effective TimeD&O Indemnitee; provided, however, that after (i) Parent shall be permitted to participate in the Effective Time, defense of such Claim at its own expense and (ii) Parent shall not be liable for any settlement effected without its written consent, which consent shall not be unreasonably withheld.
(c) In the event any Claim is asserted or made, any determination required to pay be made with respect to such insurance policies in respect of any one policy year annual premiums in excess of 200% whether a D&O Indemnitee's conduct complies with the standards set forth under applicable Law, the applicable organizational documents of the last annual premium paid by Company or any of its Subsidiaries or any indemnification agreements or arrangements of the Company prior to or any of its Subsidiaries, as 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. All such policies, including any substitute policiesmay be, shall be issued made by carriers rated A, XII or higher independent legal counsel selected by A.M. Best Company. At the Company’s option, the Company may purchase, prior such D&O Indemnitee and reasonably acceptable to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 CorporationParent.
(d) Notwithstanding anything herein Each of Parent and the D&O Indemnitee shall cooperate, and cause their respective Affiliates to cooperate, in the contrarydefense of any Claim and shall provide reasonable access to properties and individuals as reasonably requested and furnish or cause to be furnished records, if any Action (whether arising beforeinformation and testimony, at and attend such conferences, discovery proceedings, hearings, trials or after the Effective Time) is instituted against any Indemnified Party on or prior to the sixth anniversary of the Effective Timeappeals, the provisions of this Section 5.11 shall continue as may be reasonably requested in effect until the final disposition of such Actionconnection therewith.
(e) The indemnification At the option of Parent:
(i) for the six-year period commencing immediately after the Closing Date, Parent shall maintain in effect the Company's current directors' and officers' liability insurance covering acts or omissions occurring prior to the Closing Date 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 for herein that (A) Parent may substitute therefor policies of a reputable insurance company the 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 8.7(e), (B) Parent shall not be deemed exclusive obligated to make annual premium payments for such insurance to the extent such premiums exceed 200% of any other rights the annual premiums paid as of the date hereof by the Company for such insurance (such 200% amount, the "Maximum Premium"), and (C) 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 which an Indemnified Party is entitled, whether pursuant the Maximum Premium; or
(ii) Parent shall obtain by Closing and thereafter maintain in effect a six-year "tail" directors' and officers' liability insurance policy covering acts or omissions occurring prior to Law, Contract the Closing Date 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 that such "tail" policy shall provide such coverage for six years from the Closing Date and shall be obtained from the Company's current insurance company or otherwise. another reputable insurance company.
(f) 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 8.7: (i) are intended to benefitbe for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective D&O Indemnitee, his or her heirs and legal 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.
(fg) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger merger; or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, Parent shall succeed to assume all of the obligations thereof set forth in this Section 5.118.7.
(h) The obligations of Parent under this Section 8.7 shall not be terminated or modified in such a manner as to adversely affect any D&O Indemnitee to whom this Section 8.7 applies without the consent of the affected D&O Indemnitee (it being expressly agreed that the D&O Indemnitees to whom this Section 8.7 applies shall be third party beneficiaries of this Section 8.7).
Appears in 1 contract
Samples: Merger Agreement (Harris Corp /De/)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles The certificates of incorporation or and bylaws (or comparable organizational documents) of the Company Surviving Corporation and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) the subsidiaries of the Company Disclosure Letter shall contain the provisions with respect to indemnification, exculpation from liability and advancement of expenses set forth in such certificates of incorporation, bylaws and other organizational documents as in effect immediately prior to on the Effective Time between such Indemnified Party and date hereof for the Company or any (in the case of its Subsidiaries shall survive the Merger and continue in full force and effectSurviving Corporation), and for each subsidiary of the Company (in the case of each such subsidiary), which provisions shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For for a period of six years from the Effective Time, Parent shall either cause Time in any manner that would adversely affect the rights thereunder of individuals who on or prior to be maintained in effect the current policies Effective Time are among those classes of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by persons currently entitled to indemnification from the Company and its Subsidiaries subsidiaries as provided in their respective certificates of incorporation or cause by-laws (or comparable organizational documents) and to be provided substitute policies or purchase or cause the Surviving Corporation to purchase a “tail policy,” assume, without further action, as of the Effective Time any indemnification agreements of the Company in either case effect as of at least the same coverage date hereof. Parent shall guarantee the obligations of the Surviving Corporation and amounts and containing terms and conditions that are not less advantageous in the aggregate to subsidiaries of the Indemnified Parties than such policy Company with respect to matters arising on the indemnification provisions contained in the certificate of incorporation, bylaws 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 200% other organizational documents of the last annual premium paid by Surviving Corporation and the Company prior to the date hereof in respect subsidiaries of the coverage required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall will be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume the obligations set forth in this Section 5.115.05.
(c) For six years after the Effective Time, Parent shall maintain in effect 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 the Company's directors' and officers' liability insurance policy (a copy of which has heretofore been provided 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 in no event shall Parent be required to pay in any one year aggregate premiums for insurance under this Section 5.05(c) in excess of 175% of the aggregate premiums paid by the Company in fiscal 2004 for such purpose (which amount is set forth in Section 5.05 of the Company Disclosure Schedule).
(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 1 contract
Indemnification, Exculpation and Insurance. (a) Without limiting any additional The Merger Agreement provides for certain indemnification and insurance rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary in favor of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) Relypsa’s current and former officerdirectors or officers, director, manager as well as any person who becomes an officer or employee director of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company Relypsa or any of its Subsidiaries or (ii) matters existing or occurring at or subsidiaries prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby“Indemnified Persons”). Specifically, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or that the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) its subsidiaries as of the Company Disclosure Letter Effective Time will, and Galenica will cause the Surviving Corporation and its subsidiaries as of the Effective Time to, honor and fulfill in effect immediately all respects the obligations of Relypsa and its subsidiaries under (a) the indemnification agreements between Relypsa or its subsidiaries and any of their respective current or former directors, officers or employees, and any person who becomes a director, officer or employee of Relypsa or its subsidiaries prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except indemnification, exculpation and expense advancement provisions in the certificate of incorporation and bylaws or comparable organizational documents of Relypsa or its subsidiaries in effect as may be required by applicable Lawof the date of the Merger Agreement. In addition, Parent and the Company agree that all rights to indemnification and exculpation from liabilities Merger Agreement provides that, for acts or omissions occurring a period commencing at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising ending 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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 TimeDate, the provisions of this Section 5.11 shall continue in effect until the final disposition of such Action.
(e) 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.
(f) In the event that the Surviving Corporation or Parent or any and its subsidiaries will cause the certificates of their respective successors or assigns incorporation and bylaws (iand all similar organizational documents) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation and its subsidiaries to contain provisions with respect to indemnification, exculpation and advancement of expenses that are no less favorable than the indemnification, exculpation and advancement of expenses provisions contained in the certificates of incorporation and bylaws (and all similar organizational documents) of Relypsa and its subsidiaries as of the date of the Merger Agreement, and that, during such six year period, such provisions will not be repealed, amended or Parent, as the case may be, shall succeed otherwise modified in a manner adverse to the obligations set forth in this Section 5.11.Indemnified Persons except as required by law. The Merger Agreement further provides that, subject to the satisfaction of the conditions and subject to the exceptions included therein, for a period commencing at the Effective Time and ending on the sixth anniversary
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. The Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company Merger Sub agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors or officers of the Company and its Subsidiaries as provided in the articles their respective certificate of incorporation or bylaws (or comparable organizational documents) and any indemnification agreements of the Company and its Subsidiaries or (as each is in any indemnification agreement (or form thereof) identified effect on the date hereof), the existence of which has been disclosed in Section 5.11(a) of the Company Disclosure Letter Letter, shall be assumed by the Parent and in effect immediately prior to the Surviving Corporation, without further action, as of the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effecteffect in accordance with their terms, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than honor all such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 Corporationrights.
(db) 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.
(e) 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.
(f) In the event that If the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Person, or otherwise dissolves the Surviving Corporation, then, and in each such case, the Parent shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume the obligations set forth in this Section 5.115.8.
(c) The Parent shall 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 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 substantially similar to those in effect on the date hereof or (ii) cause to be provided by a reputable insurance company coverage substantially similar with respect to coverage and amount and to such officers and
Appears in 1 contract
Samples: Merger Agreement (Dean Foods Co/)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional [Intentionally omitted.]
(b) The Purchaser Group agrees that all rights that any employee may have under any agreement to indemnification, advancement of expenses and exculpation from liabilities for acts or Company Plan, from omissions occurring at or prior to the Effective Time through the sixth anniversary Closing now existing in favor of the current or former directors, officers or employees of the Nutrition Entities, in their capacities as such, as provided in their respective Organizational Documents and any indemnification or other similar Contracts of any Nutrition Entity set forth in Section 4.08(b) of the Seller Disclosure Letter, in each case, as in effect on the date on which of this Agreement, shall continue in full force and effect in accordance with their terms (it being agreed that after the Effective Time occursClosing such rights shall be mandatory rather than permissive, Parent shallif applicable, or with respect to directors and officers), and the Purchaser Group shall cause the Surviving Corporation toNutrition Entities to perform their respective obligations thereunder. The Purchaser Group shall not permit any such indemnification, advancement of expenses or exculpation provision to be amended, repealed or otherwise modified after the Closing Date in any manner that would adversely affect the rights of the Nutrition Indemnified Parties thereunder, unless any such amendment, repeal or modification is required by applicable Law. In connection with the foregoing, from and after the Closing, the Purchaser Group agrees that it shall indemnify and hold harmless each present individual who at Closing or prior to Closing is a current or former director or officer of any Nutrition Entity (including each individual who becomes, prior to the Closing, a director or officer of any Nutrition Entity), in their capacity as such, who is entitled to indemnification and/or advancement of expenses under the respective Organizational Documents of the Effective TimeNutrition Entities or other similar Contracts of any Nutrition Entity set forth in Section 4.08(b) and former officer, director, manager or employee of the Company and its Subsidiaries Seller Disclosure Letter, in each case, as in effect on the date of this Agreement (the “Nutrition Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”)disbursements, incurred in connection with any ActionClaim, whether civil, criminal, administrative or investigative, arising out of or pertaining investigative with respect to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time Closing (including this Agreement Agreement, the Transactions and the transactions and actions contemplated herebyby this Agreement), arising out of or pertaining to the fact that the Nutrition Indemnified Party is or was a director or officer of any Nutrition Entity, whether asserted or claimed prior to, at or after the Effective TimeClosing, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any in each case in accordance with such Action, Organizational Documents or such Contracts (A) each Indemnified Party shall be entitled to including advancement of expenses incurred in the defense of as provided therein). Any determination required to be made with respect to whether any Action from Parent or the Surviving Corporation, to the fullest extent permitted Nutrition Indemnified Party’s conduct complies with an applicable standard under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor applicable Organizational Documents of any Nutrition Entity or applicable indemnification agreements, as the case may be, shall, if requested by such Nutrition Indemnified Party as provided in Party, be made by independent legal counsel to be agreed upon by the articles of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Nutrition Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified PartyPurchaser acting reasonably.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(f) In the event that the Surviving Corporation Purchaser Group or Parent any Nutrition Entity or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Person, then, and in each such case, the Purchaser Group or such Nutrition Entity, as applicable, shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation Purchaser Group or Parentsuch Nutrition Entity, as applicable, assume the case may be, shall succeed to the obligations covenants and agreements set forth in this Section 5.114.08.
(d) The provisions of this Section 4.08 (i) shall survive the Closing for a period of six (6) years, (ii) are intended to be for the benefit of, and shall be enforceable by, each indemnified or insured party (including the Nutrition Indemnified Parties), his or her heirs and his or her representatives, all of which, are express third-party beneficiaries of this Section 4.08 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
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights Parent and Merger Sub agree that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that certificate of incorporation or the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent bylaws of the Company or any of Surviving Corporation and its Subsidiaries or (ii) matters existing or occurring at or prior to immediately after the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights contain provisions with respect to indemnification and exculpation from liabilities for acts or omissions occurring liability that are at or prior least as favorable to the Effective Time and rights to advancement beneficiaries of expenses relating thereto now existing in favor of any Indemnified Party such provisions as provided those provisions that are set forth in the articles of incorporation or bylaws (or comparable Company Certificate and Company Bylaws and similar organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any documents of its Subsidiaries shall survive Subsidiaries, on the Merger and continue in full force and effectdate of this Agreement, and which provisions shall not be amended, repealed or otherwise modified for a period of six years following the Effective Time in any manner that would adversely affect any right the rights thereunder of persons who at or prior to the Effective Time were directors, officers, employees or agents of the Company or any of its Subsidiaries, unless such Indemnified Partymodification is required by law and (ii) all rights to indemnification as provided in any indemnification agreements with any current or former directors, officers and employees of the Company or any of its Subsidiaries as in effect as of the date hereof with respect to matters occurring at or prior to the Effective Time shall survive the Merger.
(cb) For a period of six years from after the Effective Time, Parent the Surviving Corporation shall either maintain or cause to be maintained in effect the current policies of officers' and directors’ and officers’ ' liability insurance and fiduciary liability insurance maintained covering the persons described in paragraph (a) of this Section 6.04 (whether or not they are entitled to indemnification thereunder) who are currently covered by the Company Company's existing officers' and its Subsidiaries directors' or cause fiduciary liability insurance policies set forth on Section 6.04(b) of the Disclosure Schedules on terms no less advantageous to be such indemnified parties than such existing insurance; provided substitute policies or purchase or cause that the Surviving Corporation to purchase a “tail policy,” in either case of at least the same coverage and amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before the Effective Time; provided, however, that after the Effective Time, Parent shall not be required obligated to pay with respect to annual premiums for such insurance policies in respect of any one policy year annual premiums in excess of 200% of the last annual premium paid by the Company prior to the date hereof in respect of this Agreement (which premium is set forth on Section 6.04(b) of the coverage required Disclosure Schedules).
(c) The Surviving Corporation shall indemnify and hold harmless (and shall advance expenses to), to be obtained pursuant heretothe fullest extent permitted under applicable law, but in such case shall purchase as much coverage as reasonably practicable for such amount. All such policieseach director, including officer and employee of the Company or any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At Subsidiary of the Company’s option, including, without limitation, officers and directors, serving as such on the Company may purchasedate hereof, prior against any reasonable expenses (including reasonable attorneys' fees and disbursements), judgments, penalties, fines and settlements in connection with any threatened, pending or completed civil, criminal, administrative, arbitration or investigative proceeding relating to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies any of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If , and in the event of any such prepaid tail policy has been obtained by the Company prior to proceeding (whether arising before or after the Effective Time), Parent shall cause the parties hereto will cooperate in the defense of any such policy to be maintained in full force and effectmatter; provided, for its full termhowever, and cause all obligations thereunder to be honored by that the Surviving CorporationCorporation shall not be liable for any settlement effected without its prior written consent, which consent shall not unreasonably be withheld or delayed.
(d) Notwithstanding anything herein The Surviving Corporation shall pay all reasonable expenses, including attorneys' fees that may be incurred by any indemnified parties in enforcing the indemnity and other obligations provided for in this Section 6.04 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 Actionfullest extent permitted by applicable law.
(e) 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.
(f) In the event that the Surviving Corporation or Parent or any of their its respective successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and assets to any Person, then, and in each such caseperson, proper provision provisions shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume the obligations set forth in this Section 5.116.04.
(f) This Section 6.04, which shall survive the consummation of the Merger at the Effective Time and shall continue for the periods specified herein, is intended to benefit the Company, the Surviving Corporation, and any person or entity referenced in this Section 6.04 or indemnified hereunder, each of whom may enforce the provisions of this Section 6.04 (whether or not parties to this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Aki Inc)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree Live Nation agrees that all rights to indemnification indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles current or former directors or officers or employees or agents of Ticketmaster and the Ticketmaster Subsidiaries to the fullest extent permissible by their respective certificates of incorporation or bylaws (or comparable organizational documents) and any indemnification or other similar agreements of Ticketmaster or any of the Company and its Ticketmaster Subsidiaries or as in any indemnification agreement (or form thereof) identified in Section 5.11(a) effect as of the Company Disclosure Letter and date of this Agreement, in each case as in effect immediately prior to on the date of this Agreement, shall be assumed by Live Nation in the Merger, without further action, as of the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effect, and shall not be amended, repealed or otherwise modified effect in any manner that would adversely affect any right thereunder of any such Indemnified Partyaccordance with their terms.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent Live Nation or any of their respective its successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Person, then, and in each such case, Live Nation shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to Live Nation assume the obligations set forth in this Section 5.116.5.
(c) From and after the Effective Time, Live Nation shall use reasonable best efforts to cause the individuals serving as officers and directors of Ticketmaster or any of the Ticketmaster Subsidiaries immediately prior to the Effective Time and any other Person who is covered by Ticketmaster’s current directors’ and officers’ liability insurance policy to be covered with respect to acts or omissions occurring at or prior to the Effective Time for a period of six years from and after the Effective Time either by the directors’ and officers’ liability insurance policy maintained by Live Nation or by directors’ and officers’ liability insurance policies, issued by reputable insurers, with policy limits, terms and conditions at least as favorable as the limits, terms and conditions in the existing policy of Ticketmaster. Live Nation shall maintain such policy in full force and effect, and continue to honor the obligations thereunder.
(d) The provisions of this Section 6.5 (i) shall survive consummation of the Merger, (ii) 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 (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: Merger Agreement (Live Nation, Inc.)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company Merger Sub agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at as of or prior to the Effective Time (and any rights relating to the advancement of expenses relating thereto now expenses) existing as of the date hereof in favor of any Indemnified Party the current or former directors, officers, employees or agents of the Company and its Subsidiaries (each, an "Indemnitee") as provided in the articles their respective certificates of incorporation or bylaws by-laws (or comparable organizational documents) and indemnification Contracts in existence as of the date hereof between the Company and or its Subsidiaries or in and any indemnification agreement (or form thereof) identified in Section 5.11(a) of them shall be assumed by the Company Disclosure Letter and in effect immediately prior to Surviving Corporation, without further action, as of the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effecteffect in accordance with their terms. Such rights shall not be amended, or otherwise modified in any manner that would adversely affect the rights of the Indemnitees, unless such modification is required by Law. In addition, the Surviving Corporation shall pay any related expenses of any Indemnitee under this Section 6.04(a) as incurred to the fullest extent permitted under applicable Law (including expenses incurred to determine whether indemnification or exculpation is available), provided that the person to whom expenses are advanced provides an undertaking to repay such advances to the extent required by applicable Law. Parent shall take any and all actions necessary to ensure that the Surviving Corporation complies with and honors the foregoing obligation as in effect on the date hereof, including providing funds, if necessary, to permit the Surviving Corporation to comply with its obligations under this Section 6.04(a).
(b) Parent, from and after the Effective Time, shall cause (i) the certificate of incorporation and by-laws of the Surviving Corporation to contain provisions no less favorable with respect to the 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 Certificate and the Company By-laws and (ii) the certificate of incorporation and by-laws (or similar organizational documents) of each Subsidiary of the Surviving Corporation to contain provisions no less favorable with respect to the limitation of certain liabilities of directors, officers, employees and agents and indemnification than those in effect as of the date hereof and set forth in the certificate of incorporation or by-laws (or similar organizational documents) of the applicable Subsidiary of the Company, which provisions, in the case of clauses (i) and (ii), shall not be amended, repealed or otherwise modified in any a manner that would adversely affect any right the rights thereunder of any such Indemnified Partythe Indemnitees.
(c) For a period of six years from after the Effective Time, Parent shall, or shall either cause to be maintained in effect 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 to, obtain and amounts maintain director's and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy officers' liability insurance with respect to matters arising on acts, errors or before omissions occurring prior to the Effective TimeTime ("Run-Off Insurance"). Such Run-Off Insurance shall (i) solely be negotiated and implemented by the Parent or its agents, (ii) provide coverage for each person or entity covered by the Company's current directors and officers liability insurance policy as in effect on the date hereof, (iii) not be cancelable by the Parent, its agents or the Surviving Corporation during the six year term of such Run-Off Insurance and (iv) be no less favorable with respect to coverage terms and amounts in any material respect than the Company's current directors' and officers' liability insurance policy as in effect on the date hereof; provided, however, that after in no event shall Parent, any of its Subsidiaries or the Effective Time, Parent shall not Surviving Corporation be obligated or required to pay with respect to such aggregate premiums for insurance policies under this Section 6.04(c) in respect of any one policy year annual premiums coverage period in excess of 200275% of the last annual premium amount of the aggregate premiums paid by the Company prior to for the date hereof in respect of the coverage required to be obtained pursuant heretoperiod from September 1, but in such case shall purchase as much coverage as reasonably practicable 2005 to, and including, August 31, 2006, for such amount. All purpose (which premiums for such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable period are hereby represented and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained warranted by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, be $49,000); provided that Parent shall cause nevertheless be obligated to provide such coverage in any annual coverage period as may be obtained for such 275% amount. Subject to this Section 6.04(c), the Parent or its agents shall have the right to substitute the insurance company providing the Company's current director's and officer's liability insurance policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Surviving Corporationwith another financially sound insurance company.
(d) 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.
(e) 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 6.04 are (i) intended to benefitbe for the benefit of, and shall will be enforceable by, each of the Indemnified Parties and their respective Indemnitee, his or her heirs and legal representativeshis 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.
(fe) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, Parent shall cause proper provision shall to be made so that the successors successor and assigns assign of the Surviving Corporation or ParentCorporation, as the case may be, shall succeed to assumes the obligations set forth in this Section 5.116.04.
(f) The obligations of Parent and the Surviving Corporation under this Section 6.04 shall not be terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 6.04 applies without the consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 6.04 applies shall be third party beneficiaries of this Section 6.04).
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify From and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, Buyer shall cause each Acquired Company (each a “Primary Indemnitor”) to indemnify, defend and hold harmless, to the fullest extent permitted under applicable Law and Law, the individuals who at or prior to the Effective Time were directors or officers of any Acquired Company Charter and Company Bylaws (collectively in their capacities as such, the “Indemnitees”), with respect to all acts or omissions by them in their capacities as such or taken by them at the date hereof. In the event request of any such ActionAcquired Company, (A) in each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent case, at or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree Buyer agrees that all rights of the Indemnitees to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles Certificate of incorporation Incorporation, the Bylaws or bylaws (or any comparable organizational documents) Organizational Document of any Company Subsidiary as now in effect, and each of the indemnification agreements or arrangements of any Acquired Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(aset forth on Schedule 6.6(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries Schedules, shall survive the Merger Closing and shall continue in full force and effecteffect in accordance with their terms and all debts, liabilities, obligations and duties of the Company thereunder shall become the debts, liabilities, obligations and duties of the Surviving Corporation in accordance with the terms of this Agreement. Such rights shall not be amended, or otherwise modified in any manner that would adversely affect the rights of the Indemnitees. In addition, and without limiting Buyer’s obligations under the immediately preceding sentence, from and after the Effective Time, Buyer shall cause the Acquired Companies to advance any expenses with respect to matters that are, or are potentially, indemnifiable in accordance with this Section 6.6(a) (including fees and expenses of legal counsel) of any Indemnitee under this Section 6.6 (including in connection with enforcing the indemnity and other obligations referred to in this Section 6.6), 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 in a final judicial determination that such Person was not entitled to be so indemnified.
(b) Buyer hereby acknowledges that certain Indemnitees may have rights to indemnification, advancement of expenses and/or insurance provided by Persons other than the Acquired Companies (collectively, the “Secondary Indemnitors”). Buyer hereby agrees that with respect to the indemnification and expense advancement arrangements referenced in Section 6.6(a) (i) the Primary Indemnitors are the indemnitor of first resort (i.e., their obligations to the Indemnitees are primary and any obligation of the Secondary Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by any Indemnitee are secondary), (ii) the Primary Indemnitors shall be required to advance the full amount of expenses incurred by any Indemnitee, and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement, in each case, to the extent legally permitted and as required by the terms of this Agreement, the Certificate of Incorporation, the Bylaws and any comparable Organizational Documents of any of the Company Subsidiaries or each other agreement between any Acquired Company and any such Indemnitee, and subject to the terms thereof, without regard to any rights the Indemnitee may have against the Secondary Indemnitors, and (iii) the Primary Indemnitors irrevocably waive, relinquish and release the Secondary Indemnitors from any and all claims against the Secondary Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. Each of Buyer and the Surviving Corporation further agree that no advancement or payment by an Secondary Indemnitor on behalf of an Indemnitee with respect to any claim for which an Indemnitee has sought indemnification from the Primary Indemnitors shall affect the foregoing and the applicable Secondary Indemnitor shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of the Indemnitee against the Primary Indemnitor. Buyer and the Indemnitees agree that the Secondary Indemnitors are express third party beneficiaries of the terms of this Section 6.6(b).
(c) For a period of six (6) years after the Effective Time, Buyer shall cause the certificate of incorporation, bylaws or comparable Organizational Documents of the Surviving Corporation and each Acquired Company to contain provisions with respect to indemnification and exculpation from liability that are at least as favorable to the beneficiaries of such provisions as those provisions set forth as of the date of this Agreement in, as applicable, the Certificate of Incorporation, the Bylaws or comparable Organizational Documents of each Acquired Company which provisions, in each case, shall not be amended, repealed or otherwise modified in any a manner that would adversely affect any right the rights thereunder of any such Indemnified Partythe Indemnitees.
(cd) For a period At the expense of six years from Buyer, the Effective TimeIndemnitee shall cooperate in the defense of any investigation of, Parent any litigation, claim or proceeding relating to any acts or omissions covered by this Section 6.6 and shall either provide access to properties and individuals as reasonably requested and furnish or cause to be maintained furnished books, records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in effect connection therewith.
(e) Prior to the current policies of Closing, the Company shall purchase (at Buyer’s expense) the directors’ and officers’ “tail” or “runoff” insurance program currently available to be purchased under the existing directors’ and officers’ liability insurance plan covering the Acquired Companies’ directors and fiduciary liability insurance maintained by officers, to the Company and its Subsidiaries or cause to be provided substitute policies or purchase or cause extent such plan remains available as of the Surviving Corporation to purchase a “tail policy,” in either case of at least Effective Time on materially the same coverage terms and amounts and containing conditions. To the extent that such plan is no longer available on materially the same terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before the Effective Time; provided, however, that after at the Effective Time, Parent Buyer shall, or shall not be required cause the Surviving Corporation, to pay with respect to such insurance policies in respect of any one policy year annual premiums in excess of 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company(at Buyer’s option, the Company may purchase, prior to the Effective Time, expense) a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability “tail” or “run-off” insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before program for a period of six (6) years after the Effective Time, covering without limitation Time (such coverage shall have an aggregate coverage limit over the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, Parent shall cause term of such policy in an amount not to be maintained in full force exceed the annual aggregate coverage limit under the Company’s existing directors’ and effect, for its full termofficers’ liability policy, and cause in all obligations thereunder other respects comparable to be honored by such existing coverage); provided that the Surviving Corporationaggregate annual premiums in respect of such policy shall not exceed 300% the annual premium of the Company’s current director’s and officer’s liability policy as of the date hereof.
(df) 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.
(e) 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 6.6 (i) are intended to benefitbe for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective Indemnitee, his or her heirs and legal 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.
(fg) In the event that Buyer, the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger merger; or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Buyer and of the Surviving Corporation or Parent, as the case may be, shall succeed to assume all of the obligations of Buyer and the Surviving Corporation set forth in this Section 5.116.6.
Appears in 1 contract
Samples: Merger Agreement (Murphy USA Inc.)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional Parent agrees that all rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date individuals who on which or prior to the Effective Time occursClosing Date were directors, Parent shall, officers or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent employees of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRScollectively, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof“Indemnitees”) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party Closing Date as provided in the articles respective certificate of incorporation or bylaws (by-laws or comparable organizational documents) documents of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its the Subsidiaries as now in effect and the indemnification agreements or arrangements of the Company or any of the Subsidiaries set forth on Schedule 6.7(a) shall survive the Merger Closing Date and shall continue in full force and effect, and effect in accordance with their terms. Such rights shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights of the Indemnitees, unless such modification is required by Law. In addition, Parent shall pay any right thereunder expenses of any Indemnitee under this Section 6.7 in accordance with the provisions of Section 6.7(c) to the extent that they are based on or arising out of the fact that such Indemnified PartyPerson is or was a director, officer or employee of the Company or any of its Subsidiaries, 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 to the extent required by applicable Law.
(b) Parent, from and after the Closing Date, shall cause the articles of incorporation and by-laws of the Surviving Corporation and each of its Subsidiaries, 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 certificate of incorporation and by-laws of the Company.
(c) For a period In the event of six years from any such liability (whether or not asserted before the Effective Time), Parent (i) the Surviving Corporation shall pay the reasonable fees and expenses of counsel selected by the Indemnitees, which counsel shall be reasonably satisfactory to the Surviving Corporation, promptly after statements therefor are received and otherwise advance to such Indemnitees upon request, reimbursement of documented expenses reasonably incurred, in either case to the extent not prohibited by the VBCA, (ii) the Surviving Corporation and the applicable Indemnitee will 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 maintained furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith, and (iii) any determination required to be made with respect to whether an Indemnitee’s conduct complies with the standards set forth under the VBCA and the articles of incorporation or by-laws of the Surviving Corporation shall be made by independent counsel mutually acceptable to the Surviving Corporation and the Indemnitees; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld). The Indemnitees as a group may retain only one law firm with respect to each related matter except to the extent there is, in the opinion of counsel to an Indemnitee, under applicable standards of professional conduct, a conflict on any significant issue between positions of such Indemnitee and any other Indemnitee or Indemnitees.
(d) Parent shall cause the Surviving Corporation to either (i) maintain in effect for the six-year period commencing immediately after the Closing Date the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by (the Company and its Subsidiaries “Existing D&O Coverage”) covering acts 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, omissions occurring prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as Time with respect to those persons who are currently covered by the current policies of Company’s directors’ and officers’ liability insurance policy on terms with respect to such coverage and fiduciary liability amount no less favorable to the Company’s directors and officers currently covered by such insurance maintained by than those of such policy in effect on the Company date hereof (provided that Parent may cause the Surviving Corporation to substitute therefor policies of a reputable insurance company the terms of which, including coverage and its Subsidiaries amount, are no less favorable to such directors and officers with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company occurring prior to the Effective Time); provided that if the aggregate annual premiums for such insurance shall exceed two hundred and fifty per cent (250%) of the aggregate annual premiums paid by the Company as of the date hereof, then Parent shall cause the Surviving Corporation to provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium of two hundred and fifty per cent (250%) of the current aggregate annual premium or (ii) to purchase a six-year extended reporting period endorsement (“reporting tail coverage”) under the Existing D&O Coverage, provided that such reporting tail coverage shall extend the director and officer liability coverage in force as of the date hereof from the Effective Time on terms, that in all material respects, are no less advantageous to the Company’s directors and officers currently covered by such insurance than those of 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.
(d) 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 on the final disposition of such Actiondate hereof.
(e) The indemnification provided for herein provisions of this Section 6.7 (i) shall not be deemed exclusive terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 6.7 applies without the consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 6.7 applies shall be third party beneficiaries of this Section 6.7 and this Section 6.7 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 which an Indemnified Party is entitled, whether pursuant to Law, indemnification or contribution that any such person may have by 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.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.11.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining JPFI agrees to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and maintain in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that accordance with their terms all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement existing as of expenses relating thereto now existing the date of this Agreement in favor of the current or former directors or officers of RSI and its subsidiaries (and any Indemnified Party of their respective predecessors, including, without limitation, US Foodservice Inc., a Delaware corporation ("US Foodservice"), that was merged within and into USF Acquisition Corporation on May 17, 1996) as provided in the articles their respective certificates of incorporation or bylaws by-laws (or comparable organizational documents) and any indemnification agreements of RSI or in Section 7.13 of the Company Agreement and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) Plan of the Company Disclosure Letter Merger dated February 2, 1996, among RSI, USF Acquisition Corporation and in effect immediately prior to the Effective Time between such Indemnified Party US Foodservice. In addition, from and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before the Effective Time; provided, however, that after the Effective Time, Parent shall not directors and officers of RSI who become directors or officers of JPFI will be required to pay with respect to such insurance policies in respect of any one policy year annual premiums in excess of 200% of the last annual premium paid by the Company prior entitled to the date hereof in respect of the coverage required to be obtained pursuant heretosame indemnity rights and protections, but in such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ ' and officers’ ' liability insurance insurance, as are afforded from time to time to other directors and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 Corporationofficers of JPFI.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent JPFI or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall will be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to JPFI assume the obligations set forth in this Section 5.115.7.
(c) JPFI shall use its best efforts to provide to RSI's current directors and officers, for six years after the Effective Time, liability insurance covering acts or omissions occurring prior to the Effective Time with respect to those persons who are currently covered by RSI'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 in no event shall JPFI be required to expend more than 200% of the current amount expended by RSI to maintain such coverage.
(d) The provisions of this Section 5.7 (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 repre- sentatives 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) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from From and after the Effective Time through Time, the sixth anniversary of the date on which the Effective Time occursSurviving Company shall and shall cause its Subsidiaries to, and Parent shall, or shall cause the Surviving Corporation Company and its Subsidiaries to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or officer and employee of the Company and its Subsidiaries (the each an “Indemnified PartiesPerson”) against any and all costs, expenses (including reasonable attorneys’ fees), against all claimsjudgments, fines, penalties, taxes, losses, liabilitiesclaims, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), damages or other liabilities incurred in connection with any Action or threatened Action, whether civil, criminal, administrative or investigative, whether formal or informal, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at on or prior to the Effective Time Closing Date (including this Agreement the Merger, the Financing, the Best Efforts Debt Financing and the other transactions and actions contemplated hereby), whether asserted or claimed prior to, at on or after the Effective TimeClosing Date, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior would have been permitted under applicable Law, including with respect to the Effective Time between such Indemnified Party and the Company or any advancement of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Partyexpenses.
(cb) For a period of six years from the Effective Time, Parent the memorandum of association and articles of association (or comparable organizational documents) of the Surviving Company and each of its Subsidiaries shall either cause contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors, officers and employees than are presently set forth in the memorandum of association and articles of association (or comparable organizational documents) of such entity, and no such provisions shall be maintained amended, repealed or otherwise modified during such period in effect any manner adverse to any such individuals.
(c) Prior to the current policies of Closing Date, the Company shall purchase a “tail” directors’ and officers’ liability insurance policy for the Company and fiduciary its Subsidiaries and their present and former directors, officers and employees who are currently covered by the directors’ and officers’ liability insurance coverage currently maintained by the Company that shall provide such directors, officers and 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 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before the Effective TimeSubsidiaries; provided, however, that after in no event shall the Effective Time, Parent shall not be required to Company pay with respect to such insurance policies tail policy in respect of any one policy year annual premiums in excess of 200more than 300% of the last aggregate annual premium most recently paid by the Company prior to the date hereof in respect of this Agreement net of any return premium received from the coverage required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance currently maintained by the Company and its Subsidiaries with respect to matters arising on or before (the Effective Time“Maximum Amount”); provided, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by that if the Company prior is unable to obtain the insurance required by this Section 5.10(c), it shall be entitled to obtain comparable insurance as possible for each year within such six-year period for an annual premium equal to the Effective TimeMaximum Amount. Following the Closing, the Surviving Company shall and shall cause its Subsidiaries to, and Parent shall cause the Surviving Company and its Subsidiaries to, maintain such policy to be maintained in full force and effect, for its full term, and cause all continue to honor the obligations thereunder to be honored by the Surviving Corporationthereunder.
(d) Notwithstanding anything herein to the contrary, if any Action (whether arising before, at or From and 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 Surviving Company shall, and shall continue cause its Subsidiaries to, and Parent shall cause the Surviving Company and its Subsidiaries to, honor in accordance with its terms, each indemnification agreement (including as may be contained in any employment agreement or arrangement) in effect until between the final disposition Company or any of such Actionits Subsidiaries and any Indemnified Person as of the date hereof.
(e) 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.
(f) In the event that the Surviving Corporation Company or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or otherwise conveys all or a majority of its properties and assets to any Person, then, and in each such case, then proper provision shall be made so that the successors and assigns of the Surviving Corporation Company or Parent, or the holder of their assets, as the case may be, shall succeed to the obligations set forth in this Section 5.115.10.
(f) This Section 5.10 is intended to be for the benefit of, and shall be enforceable by, each of the Persons entitled to indemnification. 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
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree Acquirer agrees that all rights to indemnification indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party person who is, as of the Effective Time, a director or executive officer as Previously Disclosed for purposes of this Section 6.16 of the Company or the Company Bank as provided in the articles respective certificates of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries and any Previously Disclosed indemnification or other agreements of the Company or its applicable Subsidiary, in each case as in effect on the date of this Agreement, shall be assumed by the Surviving Company in the Merger, without further action, at the Effective Time, and shall survive the Merger and shall continue in full force and effecteffect in accordance with their terms, subject to applicable Law, and Acquirer shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Partycause the Surviving Company to comply with and honor the foregoing obligations.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent Company or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, or if Acquirer dissolves the Surviving Company, then, and in each such case, proper provision Acquirer shall be made take such action, to the extent necessary, so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to Company assume the obligations set forth in this Section 5.116.1.
(c) Prior to the Effective Time, the Company shall purchase a six-year “tail” directors’ and officers’ liability insurance policy effective for claims asserted for a six-year period after the Effective Time covering each person covered as of the Effective Time 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 as in effect on the date of this Agreement, which insurance shall, prior to the Closing, be in effect and prepaid for such entire six-year period; provided that the Company shall not pay an aggregate premium for such policy in excess of 200% of the current annual premium paid by the Company for its existing coverage (the “Maximum Premium”). If such insurance coverage cannot be obtained at all, or can only be obtained at an aggregate premium in excess of the Maximum Premium, the Company shall acquire the most advantageous policy obtainable for an aggregate premium equal to the Maximum Premium.
Appears in 1 contract
Samples: Merger Agreement (LendingClub Corp)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional Parent and Sub agree that all rights that any employee may have under any agreement to indemnification, advancement of expenses and exculpation from liabilities for acts or Company Plan, from omissions occurring at or prior to the Effective Time through the sixth anniversary now existing in favor of the date on which the Effective Time occurs, Parent shall, current or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager directors or employee officers or employees 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 as in effect on the date of this Agreement shall be assumed by the Surviving Corporation in the Merger, without further action, at the Effective Time, and shall survive the Merger and shall continue in full force and effect in accordance with their terms, and Parent shall cause the Surviving Corporation to comply with and honor the foregoing obligations. During the period commencing at the Effective Time and ending on the sixth anniversary of the Effective Time, to the fullest extent permitted by applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors), the Surviving Corporation agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiriesfines, fines amounts paid in settlement and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”)disbursements, incurred in connection with any Action, whether civil, criminal, administrative actual or investigative, arising out of or pertaining threatened Legal Proceeding (including with respect to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such ActionLegal Proceeding, (Ai) each Company Indemnified Party shall will be entitled to advancement of expenses incurred in the defense of any Action such Legal Proceeding from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, Corporation within 10 fifteen (15) Business Days of receipt by Parent or the Surviving Corporation from the Company Indemnified Party of a request therefortherefor accompanied by reasonable supporting documentation; provided, that any Person person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, DGCL or the Company Charter, the Company Bylaws, Surviving Corporation’s certificate of incorporation or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Timeby-laws, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (Cii) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(f) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority of substantially all its properties and assets to any Personperson, or if Parent dissolves the Surviving Corporation, then, and in each such case, Parent shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to assume the obligations set forth in this Section 5.116.07.
(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 6.07(c) which in the aggregate exceed 300% of the aggregate premiums paid by the Company for coverage for the most recent one (1)-year period for which the Company obtained such coverage; 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 6.07 (i) are intended to be for the benefit of, and shall be enforceable by, each indemnified party, his or her heirs and his or her representatives and (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) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or Daimler-Benz and Newco AG shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and maintain in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that accordance with their terms all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of the current or former directors or officers of Chrysler or Daimler-Benz or any Indemnified Party of their respective Subsidiaries as provided in the articles their respective certificates of incorporation or bylaws by-laws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (agreements of Chrysler or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter Daimler-Benz. In addition, from and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before the Effective Time; provided, however, that after the Effective Time, Parent directors and officers of Chrysler who become directors or officers of Newco AG or Daimler-Benz shall not be required to pay with respect to such insurance policies in respect of any one policy year annual premiums in excess of 200% of the last annual premium paid by the Company prior entitled to the date hereof in respect same indemnity rights and protections as are afforded to other directors and officers of Newco AG or Daimler-Benz, as the coverage required to be obtained pursuant heretocase may be, but in such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, and Management Board members (Mitglieder des Vorstands) and officers of Daimler-Benz who become directors or officers of Newco AG or Chrysler shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior entitled to the Effective Timesame indemnity rights and protections as are afforded to other directors and officers of Newco AG or Chrysler, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 Corporationcase may be.
(db) Notwithstanding anything herein to the contraryIf Newco AG, 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.
(e) 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.
(f) In the event that the Surviving Corporation or Parent Daimler-Benz or any of their respective successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall will be made so that the successors and assigns of the Surviving Corporation Newco AG or ParentDaimler-Benz, as the case may be, shall succeed to assume the obligations set forth in this Section 5.119.8.
(c) From and after the Effective Time, Chrysler and Newco AG will indemnify and hold harmless each present and former director and officer of Chrysler and its Subsidiaries (the "Indemnified Parties"), against any costs or expenses (including 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 or pertaining to matters existing or occurring at or prior to the Effective Time, to the fullest extent that Chrysler or such Subsidiary would have been permitted under applicable law and the Certificate of Incorporation or Bylaws of Chrysler or such Subsidiary in effect on the date hereof to indemnify or to obtain insurance for such person (and Newco AG or Chrysler shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification).
(d) The provisions of this Section 9.8 are intended to be for the benefit of, and may be enforced by, each indemnified party, his or her heirs and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree Live Nation agrees that all rights to indemnification indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles current or former directors or officers or employees or agents of Ticketmaster and the Ticketmaster Subsidiaries to the fullest extent permissible by their respective certificates of incorporation or bylaws (or comparable organizational documents) and any indemnification or other similar agreements of Ticketmaster or any of the Company and its Ticketmaster Subsidiaries or as in any indemnification agreement (or form thereof) identified in Section 5.11(a) effect as of the Company Disclosure Letter and date of this Agreement, in each case as in effect immediately prior to on the date of this Agreement, shall be assumed by Live Nation in the Merger, without further action, as of the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effect, and shall not be amended, repealed or otherwise modified effect in any manner that would adversely affect any right thereunder of any such Indemnified Partyaccordance with their terms.
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent Live Nation or any of their respective its successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Person, then, and in each such case, Live Nation shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to Live Nation assume the obligations set forth in this Section 5.116.5.
(c) From and after the Effective Time, Live Nation shall use reasonable best efforts to cause the individuals serving as officers and directors of Ticketmaster or any of the Ticketmaster Subsidiaries immediately prior to the Effective Time and any other Person who is covered by Ticketmaster's current directors' and officers' liability insurance policy to be covered with respect to acts or omissions occurring at or prior to the Effective Time for a period of six years from and after the Effective Time either by the directors' and officers' liability insurance policy maintained by Live Nation or by directors' and officers' liability insurance policies, issued by reputable insurers, with policy limits, terms and conditions at least as favorable as the limits, terms and conditions in the existing policy of Ticketmaster. Live Nation shall maintain such policy in full force and effect, and continue to honor the obligations thereunder.
(d) The provisions of this Section 6.5 (i) shall survive consummation of the Merger, (ii) 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 (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: Merger Agreement (Ticketmaster Entertainment, Inc.)
Indemnification, Exculpation and Insurance. (a) Without limiting Parent shall cause the Surviving Corporation to assume the obligations with respect to all rights to indemnification and exculpation from liabilities, including advancement of expenses, whether asserted or claimed prior to, at or after the Effective Time, 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 its Subsidiaries as provided in the Company Articles, the Company Bylaws, the organization documents of any additional rights that Subsidiary or any employee may written indemnification Contract (true and correct copies of which previously have under any agreement been provided to Parent) between such directors or officers and the Company Plan(in each case, from as in effect on the date hereof), without further action, as of the Effective Time and such obligations shall survive the Merger and shall continue in full force and effect in accordance with their terms. From the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, the certificate of incorporation and bylaws of the Surviving Corporation shall contain, and Parent shall, or shall cause the certificate of incorporation and bylaws of the Surviving Corporation toto so contain, indemnify provisions no less favorable with respect to indemnification, advancement of expenses and hold harmless each exculpation of present (as of the Effective Time) and former officer, director, manager or employee directors and officers of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided than are presently set forth in the articles of incorporation or bylaws (or comparable organizational documents) of the Company Articles and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effectBylaws, and such provisions shall not be amended, repealed repealed, or otherwise modified in any manner that would could adversely affect any right the rights thereunder of any person benefited by such Indemnified Partyprovisions. Parent hereby unconditionally guarantees the obligations of the Surviving Corporation under this Section 6.07(a).
(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and other assets to any Personperson, then, and in each such case, Parent shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to expressly assume the obligations set forth in this Section 5.116.05.
(c) For six years after the Effective Time, Parent shall cause the Surviving Corporation to 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 6.05(c), neither the Company nor Parent shall be obligated to pay more than 250% of the annual premiums currently paid by the Company for such insurance (which annual premiums are set forth in Section 6.05(c) of the Company Disclosure Schedule); provided, further that, it is understood and agreed that in the event such coverage cannot be obtained for such amount or less in the aggregate, Parent shall be obligated to provide the greatest amount of substantially equivalent coverage as may be obtained for such aggregate amount.
(d) The provisions of this Section 6.05 (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 1 contract
Samples: Merger Agreement (Rare Hospitality International Inc)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights Parent acknowledges that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent by operation of law assume the obligations with respect to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities liabilities, including advancement of expenses, 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, officers, employees or agents of the Company or any Indemnified Party of its Subsidiaries as provided in the articles Company’s or any of incorporation its Subsidiaries’ certificate of incorporation, the Bylaws or bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time Contract between such Indemnified Party directors, officers, employees or agents and the Company or any of its Subsidiaries (in each case, as in effect on the date of this Agreement), without further action, as of the Effective Time and such obligations shall survive the Merger and shall continue in full force and effect, and shall not be amended, repealed or otherwise modified effect in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For accordance with their terms for a period of not less than six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising 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 200% 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. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) 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.
(fb) In the event that the Surviving Corporation or Parent or any of their respective its successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and other assets to any Personperson, then, and in each such case, Parent shall cause proper provision shall to be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to expressly assume the obligations set forth in this Section 5.115.04 for a period of not less than six years from the Effective Time. 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 5.04(a), Parent will either guarantee such obligations or take such other action to ensure that the ability of the Surviving Corporation, legal and financial, to satisfy such obligations will not be diminished in any material respect.
(c) Commencing at or prior to the Effective Time and until six years after the Effective Time, Parent shall maintain (directly or indirectly through the Company’s existing insurance programs) in effect 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 directors’ and officers’ liability insurance policy maintained by the Company or its Subsidiaries (a complete and accurate copy of which has been heretofore delivered to Parent) on terms with respect to such coverage and amounts comparable to the insurance maintained currently by the Company or its Subsidiaries, as applicable; provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not less advantageous to the beneficiaries of the current policies and with carriers having an A.M. Best “key rating” of A X or better, provided that such substitution shall not result in any gaps or lapses in coverage with respect to matters occurring prior to the Effective Time, and provided, further, that the Surviving Corporation shall first use its reasonable best efforts to obtain from such carriers a so-called “tail” policy providing such coverage and being effective for the full six year period referred to above, and shall be entitled to obtain such coverage in annual policies from such carriers only if it is unable, after exerting such efforts for a reasonable period of time, to obtain such a “tail” policy; and provided, further, that the Surviving Corporation shall not be required to pay an annual premium in excess of 300% of the last annual premium paid by the Company prior to the date of this Agreement as set forth in Section 5.04(c) of the Company Disclosure Schedule (or, in the case of a “tail” policy obtained pursuant to the preceding proviso, shall not be required to pay an aggregate premium therefor in excess of an amount equal to six times 300% of such last annual premium) and, if the Surviving Corporation is unable to obtain the insurance required by this Section 5.04(c), it shall obtain as much comparable insurance as possible for an annual premium (or an aggregate premium, as the case may be) equal to such maximum amount; and provided, further that Parent shall not acquire the insurance required by this Section 5.04(c) at or prior to the Effective Time without the Company’s prior consent (such consent not to be unreasonably withheld or delayed).
(d) The provisions of this Section 5.04: (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. It is expressly agreed that the indemnified parties shall be third party beneficiaries of this Section 5.04.
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Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree Buyer agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party the current or former directors, officer, employees or agents of Seller as provided in the articles their respective Articles or Certificates of incorporation Incorporation or bylaws by-laws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (agreements or form thereof) identified in Section 5.11(a) arrangements of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries Seller shall be assumed by Buyer, shall survive the Merger and shall continue in full force and effect, and shall not be amendedwithout amendment, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For a period of for six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before after the Effective Time; provided, however, that after the Effective Time, Parent shall not be required all rights to pay with respect to such insurance policies indemnification in respect of any one policy year annual premiums in excess of 200% 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 claim asserted or made within such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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 period shall continue in effect until the final disposition of such Actionclaim. Buyer shall pay any expenses of any indemnified person under this Section 6.14 in advance of the final disposition of any action, proceeding or claim relating to any such act or omission to the fullest extent permitted under applicable law upon receipt from the applicable indemnified person to whom advances are to be advanced of any undertaking to repay such advances required under applicable law, but only to the extent any such indemnified person would otherwise have been entitled to such advance payments from Seller in the absence of the transactions contemplated hereby. Buyer shall cooperate in the defense of any such matter. In addition, from and after the Effective Time, directors or officers of Seller who become directors or officers of Buyer will be entitled to the same indemnity rights and protections as are afforded to other directors and officers of Buyer.
(e) 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.
(fb) In the event that either of the Surviving Corporation or Parent Buyer or any of their respective successors or assigns (i) consolidates with or merges with or into any other Person person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall will be made so that the successors and assigns of Buyer or the Surviving Corporation or ParentCorporation, as the case may beapplicable, shall succeed to will assume the obligations thereof set forth in this Section 5.116.14.
(c) The provisions of this Section 6.14 (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.
(d) For six years after the Effective Time, Buyer or the Surviving Corporation shall maintain in effect the Buyer'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 the Buyers' directors' and officers' liability insurance policy on terms with respect to such coverage and amount no less favorable in the aggregate to Buyer's directors and officers currently covered by such insurance than those of such policy in effect on the date hereof; provided that the Surviving Corporation may substitute therefor policies containing terms with respect to coverage and amount no less favorable to such directors or officers.
(e) Buyer and Seller shall cause the Surviving Corporation or any successor thereto to comply with their respective obligations under this Section 6.14.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree agrees that all rights to indemnification and exculpation (including the advancement of expenses) from liabilities for acts or omissions occurring at or prior to the Effective Time and rights (including with respect to advancement of expenses relating thereto the transactions contemplated by this Agreement) existing now existing or at the Effective Time in favor of any Indemnified Party the current or former directors or officers of the Company as provided in the articles its Certificate of incorporation or bylaws Incorporation, its By-laws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and each as in effect immediately prior to on the date hereof) and reasonable indemnification agreements shall be assumed by the Surviving Corporation in the Merger, without further action, as of the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effecteffect without amendment, and shall not be amended, repealed modification or otherwise modified repeal in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(c) For accordance with their terms for a period of not less than six years from the Effective Time, Parent shall either cause to be maintained in effect 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 amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before after the Effective Time; provided, provided however, that after the Effective Timeif any claims are asserted or made within such six year period, Parent shall not be required all rights to pay with respect indemnification (and to such insurance policies advancement of expenses) hereunder in respect of any one policy year annual premiums in excess such claims shall continue, without diminution, until disposition of 200% 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 any and all such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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 Corporationclaims.
(d) 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.
(e) 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.
(fb) In the event that Parent, the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or 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) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall will be made so that the successors and assigns of Parent or the Surviving Corporation or ParentCorporation, as the case may be, shall succeed to assume the obligations set forth in this Section 5.117.05. In the event the Surviving Corporation transfers any material portion of its assets, in a single transaction or in a series of transactions, Parent will either guarantee the indemnification obligations referred to in Section 7.05(a) or take such other action to insure that the ability of the Surviving Corporation, legal and financial, to satisfy such indemnification obligations will not be diminished in any material respect.
(c) For six years after the Effective Time, Parent shall, unless Parent agrees in writing to guarantee the indemnification obligations set forth in Section 7.05(a), provide officers' and directors' liability insurance in respect of acts or omissions occurring at or prior to the Effective Time, including but not limited to the transactions contemplated by this Agreement, covering each person currently covered by the Company's officers' and directors' liability insurance policy, or who becomes covered by such policy prior to the Effective Time, on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date hereof, provided that in satisfying its obligation under this Section Parent shall not be obligated to pay premiums in excess of 200% of the amount per annum the Company paid in its last full fiscal year (which the Company represents to be $129,000), and provided further that Parent shall nevertheless be obligated to provide such coverage as may be obtained for such 200% amount.
(d) The provisions of this Section 7.05 (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 1 contract
Samples: Merger Agreement (Chase Venture Capital Associates L P)
Indemnification, Exculpation and Insurance. (a) Without limiting any additional rights Parent acknowledges and agrees that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent by operation of law assume the obligations with respect to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities liabilities, including advancement of expenses, 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, officers, employees or agents of the Company or any Indemnified Party of its subsidiaries as provided in the Company’s or any of its subsidiaries’ certificate or articles of incorporation incorporation, bylaws or bylaws (other organizational documents or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time Contract between such Indemnified Party directors, officers, employees or agents and the Company or any of its Subsidiaries subsidiaries (in each case, as in effect on the date of this Agreement), without further action, as of the Effective Time and such obligations shall survive the Merger and shall continue in full force and effecteffect in accordance with their terms for a period of not less than six (6) years from the Effective Time and that all rights to indemnification in respect of any action pending or asserted or any claim made within such period shall continue until the disposition of such action or resolution of such claim.
(b) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers or conveys all or substantially all of its properties and other assets to any Person, then, and in each such case, the Surviving Corporation shall cause proper provision to be made so that the successors and assigns of the Surviving Corporation shall expressly assume the obligations set forth in this Section 5.04 for a period of not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Partyless than six (6) years from the Effective Time.
(c) For a period of six (6) years from after the Effective Time, Parent the Surviving Corporation shall either cause to be maintained maintain (directly or indirectly through the Company’s existing insurance programs) in effect the current policies of 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 directors’ and fiduciary officers’ liability insurance policy maintained by the Company or its subsidiaries on terms with respect to such coverage and amounts comparable to the insurance maintained currently by the Company or its Subsidiaries or cause to be subsidiaries, as applicable; provided substitute policies or purchase or cause that the Surviving Corporation to purchase a “tail policy,” in either case may substitute therefor policies of at least the same coverage and amounts and containing terms and conditions that which are not less advantageous in the aggregate to the Indemnified Parties than beneficiaries of the current policies and with carriers having an A.M. Best “key rating” of A X or better, provided that such policy substitution shall not result in any gaps or lapses in coverage with respect to matters arising on or before the Effective Time; provided, however, that after occurring prior to the Effective Time, Parent and provided, further, that the Surviving Corporation shall first use its reasonable best efforts to obtain from such carriers a so-called “tail” policy providing such coverage and being effective for the full six (6) year period referred to above, and shall be entitled to obtain such coverage in annual policies from such carriers only if it is unable, after exerting such efforts for a reasonable period of time, to obtain such a “tail” policy; and provided, further, that the Surviving Corporation shall not be required to pay with respect to such insurance policies in respect of any one policy year an annual premiums premium in excess of 200% of the last annual premium paid by the Company prior to the date hereof of this Agreement (or, in respect the case of the coverage required to be a “tail” policy obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Timepreceding proviso, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, 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.
(d) 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.
(e) The indemnification provided for herein shall not be deemed exclusive required to pay an aggregate premium therefor in excess of any other rights an amount equal to which an Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise. The provisions 300% of this Section 5.11 shall survive the consummation of the Merger such last annual premium) 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.
(f) In the event that if the Surviving Corporation is unable to obtain the insurance required by this Section 5.04(c), it shall obtain as much comparable insurance as possible for an annual premium (or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parentan aggregate premium, as the case may be, shall succeed ) equal to the obligations set forth in such maximum amount.
(d) The provisions of this Section 5.115.04 (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. It is expressly agreed that the indemnified parties shall be third party beneficiaries of this Section 5.04.
Appears in 1 contract
