Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify and hold harmless 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 the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) as provided in their respective certificates of incorporation or 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 in effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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. (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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.04. (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), Merger Agreement (Golden State Vintners Inc), Agreement and Plan of Merger (Golden State Vintners Inc)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify and hold harmless For a period of six years 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 the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) as provided in their respective certificates of incorporation or 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 in effect as of the date hereof. The Surviving Corporation shall 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, directors Biovail shall maintain in effect the exculpation, indemnification and officers advancement of the Company who become directors or officers expenses provisions of the Surviving Corporation or any of its subsidiaries will be entitled to indemnification under the Surviving Corporation’s or any of its subsidiaries’ certificate of incorporation and by-laws (or comparable organizational documents)similar organization documents of each of Biovail, as the same may be amended from time Biovail Subsidiaries, Valeant and the Valeant Subsidiaries in effect immediately prior to time the Effective Time and with respect to acts or omissions prior to the Effective Time or in accordance any indemnification agreements of Biovail, the Biovail Subsidiaries, Valeant or the Valeant Subsidiaries with any of their terms respective directors, officers or employees in effect immediately prior to the Effective Time and applicable lawwith respect to acts or omissions prior to the Effective Time, and to all other indemnity 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 and protections as are afforded to other directors and thereunder of any individuals who at the Effective Time were current or former directors, officers or employees of Biovail, any of the Surviving Corporation Biovail Subsidiaries, Valeant or any of its subsidiariesthe 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 first sentence of this Section 6.05(d).
(e) 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 Valeant’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, Valeant may, following consultation with Biovail, purchase a “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 Valeant, in which event Biovail or the Surviving Company, as the case may be, shall cease to have any obligations under the first sentence of this Section 6.05(e).
(f) In the event that Biovail or the Surviving Corporation Company or any of its successors or assigns (i) consolidates with or merges into any other person Person and is not 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 substantially all of its properties and assets to any personPerson, then, and in each such case, Biovail shall cause proper provision will to be made so that the successors and assigns of Biovail or the Surviving Corporation Company, as the case may be, assume the obligations set forth in this Section 5.046.05.
(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.
(dg) The provisions of this Section 5.04 are 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 partyIndemnitee, his or her heirs and his or her representatives and (iiiii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person Person may have by contract or otherwise. Each indemnified party 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 an intended third party beneficiarysuccessful 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) The Surviving Corporation shall indemnify NHC/OP Sub and hold harmless Parent agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the current or former directors or officers of the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement and listed on Section 5.07 of the Company Disclosure Schedule, shall be assumed by the Surviving Corporation Person in the Merger shall assumeMerger, without further action, as of the Effective Time any indemnification agreements of and shall survive the Company Merger and shall continue in full force and effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 for six years following the Surviving Corporation or any of its subsidiariesMerger.
(b) In the event that the Surviving Corporation Person 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, NHC/OP Sub shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation Person assume the obligations set forth in this Section 5.045.07.
(c) For six four years after the Effective Time, the Surviving Corporation NHC/OP Sub shall maintain in effect the Company’s current directors’ and officers’ liability insurance covering in respect of acts or omissions occurring prior to the Effective Time with respect to those persons who are currently 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 amount amounts no less favorable in any material respect than those of such policy in effect on the date hereofof this Agreement; provided that the Surviving Corporation NHC/OP Sub may substitute therefor a policy or policies of the Surviving Corporation or its subsidiaries a reputable insurance company containing terms with respect to coverage and amount no less favorable in any material respect to such directors or officersinsured persons.
(d) The provisions of this Section 5.04 are 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 (iiiii) 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 an intended third party beneficiary.
Appears in 2 contracts
Samples: Merger Agreement (National Health Realty Inc), Merger Agreement (National Healthcare Corp)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Parent and hold harmless Sub agree that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the current or former directors or officers of the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its Subsidiaries as provided in their respective certificates of incorporation or by-laws bylaws (or comparable organizational documents) and any indemnification or other agreements of the Company (in each case as in effect on the date of this Agreement or as amended or entered into prior to the Effective Time with the consent of Parent) shall be assumed by the Surviving Corporation in the Merger shall assumeMerger, without further action, as of the Effective Time any indemnification agreements of the Company in effect as of the date hereof. The Surviving Corporation shall 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 at the Effective Time, directors and officers of shall survive the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to indemnification under the Surviving Corporation’s or any of its subsidiaries’ certificate of incorporation Merger and by-laws (or comparable organizational documents), as the same may be amended from time to time shall continue in full force and effect 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 subsidiariesterms.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of 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 will to be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.046.05.
(c) For six years after From the Offer Closing through the sixth (6th) anniversary of the Effective TimeTime (such period, the Surviving Corporation "Tail Period"), Parent shall maintain in effect the Company’s '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 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 amounts no less favorable than those of such policy in effect on the date hereofof this Agreement; provided that in no event shall Parent be required to pay in any one (1) year during the Surviving Corporation 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 Surviving Corporation Company to obtain, on or its subsidiaries containing prior to the Closing Date, prepaid (or "tail") directors' and officers' liability insurance policy at Parent's expense, in each case, the material terms with respect to of which, including coverage and amount amount, are no less favorable to such directors or officersand officers than the insurance coverage otherwise required under this Section 6.05(c).
(d) The provisions of this Section 5.04 are 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 Contract or otherwise. Each indemnified party is an intended third party beneficiary.
Appears in 2 contracts
Samples: Merger Agreement (Kosan Biosciences Inc), Merger Agreement (Bristol Myers Squibb Co)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify VeraSun and hold harmless Sub 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 the Company Subsidiary (and any other subsidiary formed after rights for advancement of expenses) now existing in favor of the date hereof in the ordinary course current or former directors or officers of business US BioEnergy or with the consent of Parent) its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other agreements of US BioEnergy as in effect on the date of this Agreement shall be assumed by the Surviving Corporation in the Merger shall assumeMerger, without further action, as of the Effective Time any indemnification agreements of and shall survive the Company Merger and shall continue in full force and effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 subsidiariesterms.
(b) In the event that VeraSun or the Surviving Corporation or any of its 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, VeraSun shall cause proper provision will to be made so that the successors and assigns of VeraSun or the Surviving Corporation Corporation, as applicable, assume the obligations of VeraSun or the Surviving Corporation, as applicable, set forth in this Section 5.045.06 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 diminished in any material respect.
(c) For six years from and after the Effective Time, the Surviving Corporation VeraSun shall maintain in effect the CompanyUS BioEnergy’s current directors’ and officers’ liability insurance covering acts or omissions occurring prior to the Effective Time with respect to those persons who are covering each person currently covered by the CompanyUS BioEnergy’s directors’ and officers’ liability insurance policy on terms with respect to such coverage and amount amounts no less favorable than those of such policy in effect on the date hereofof this Agreement; provided that the Surviving Corporation VeraSun may substitute therefor policies of the Surviving Corporation VeraSun 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 VeraSun be required to pay annual premiums for insurance under this Section 5.06(c) 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; provided that VeraSun shall nevertheless be obligated to provide such coverage as may be obtained for such 250% amount. Alternatively, at US BioEnergy’s option, prior to the Effective Time, US BioEnergy may purchase a six-year prepaid “tail” policy on terms and conditions providing substantially equivalent benefits as US BioEnergy’s current directors’ and officers’ liability insurance 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 policy has been obtained in accordance with this Section 5.06(c), 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) The provisions of this Section 5.04 are 5.06 (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. Each indemnified party is an intended third party beneficiaryVeraSun will pay (as incurred) all out-of-pocket expenses, including reasonable fees and expenses of counsel, that a current or former director or officer of US BioEnergy may incur in enforcing the indemnity and other obligations provided for in this Section 5.06.
Appears in 2 contracts
Samples: Merger Agreement (US BioEnergy CORP), Merger Agreement (Verasun Energy Corp)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation For a period of six (6) years following the Closing Date, Buyer shall indemnify and hold harmless from liabilities cause the Company to maintain all rights of the current or former directors, officers or managers (or individuals holding similar positions) of the Company who have the right to indemnification or exculpation by the Company (collectively, the “Indemnitees”) for acts or omissions occurring at or prior to the Effective Time those classes of persons currently entitled to indemnification from the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) Closing Date as provided in their respective certificates the certificate of incorporation formation or 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 limited liability company agreement of the Company as now in effect as and the indemnification agreements or other arrangements set forth on Schedule 6.6(a) (collectively, the “Indemnification Rights”). The Indemnification Rights shall not be amended or otherwise modified in any manner that would adversely affect the rights of the date hereof. The Surviving Corporation shall advance expenses to any Indemnitees, unless 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 modification is not entitled to indemnification. In addition, from and after the Effective Time, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 subsidiariesrequired 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 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 advancement 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) On or prior to the Closing Date, Seller shall obtain a six (6) year tail insurance policy (the “D&O Tail Policy”) with respect to officers’ and directors’ liability insurance covering the Persons who are presently covered by the Company’s (or a parent company’s) officers’ and directors’ liability insurance policy, with respect to 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 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 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 the Indemnitee shall be permitted to participate in the defense of such Claim at their own 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 Company or any of its their 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 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 substantially all of its properties and assets to any person, then, and in each such case, proper provision will shall be made so that the successors and assigns of Buyer and the Surviving Corporation Company shall assume all of the obligations of Buyer and the Company set forth in this Section 5.046.6.
(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 2 contracts
Samples: Unit Purchase Agreement, Unit Purchase Agreement (Choice Hotels International Inc /De)
Indemnification, Exculpation and Insurance. (a) The From the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs (the “Indemnification Period”), Parent and the Surviving Corporation shall shall, jointly and severally, indemnify and hold harmless from liabilities for acts each individual who is now, or omissions has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director or officer (or equivalent) of Parent, the Company or any of their respective Subsidiaries (each, an “Indemnified Party”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (i) by reason of the fact that the Indemnified Party is or was a director or officer of Parent, the Company or any of their respective Subsidiaries or (ii) arising out of or pertaining to matters existing or occurring at or prior to the Effective Time those classes of persons currently (including this Agreement and the transactions and actions contemplated by this Agreement) (in each case, a “D&O Related Claim”), whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each Indemnified Party will be entitled to indemnification from the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof advancement of expenses incurred in the ordinary course defense of business any such claim, action, suit, proceeding or with investigation from Parent or the consent Surviving Corporation, within ten (10) Business Days of Parent) as provided in their respective certificates of incorporation receipt by Parent or by-laws (or comparable organizational documents) and the Surviving Corporation in from the Merger shall assume, without further action, as Indemnified Party of the Effective Time any indemnification agreements of the Company in effect as of the date hereof. The Surviving Corporation shall advance expenses to a request therefor; provided that any such person promptly upon receipt of to whom expenses are advanced provides an undertaking from to Parent, to the extent then required by applicable Law, to repay such person that such expenses shall be repaid should advances if it be is ultimately determined that such person is not entitled to indemnification.
(b) The provisions of the Organizational Documents of Parent and its Subsidiaries (including the Surviving Corporation) with respect to indemnification, advancement of expenses and exculpation of the Indemnified Parties that are presently set forth in their Organizational Documents shall not be amended, modified or repealed during the Indemnification Period in a manner that would adversely affect the rights thereunder of the Indemnified Parties, unless such modification is required by applicable Law. In additionDuring the Indemnification Period, from Parent and the Surviving Corporation shall cause the Organizational Documents of Parent and the Surviving Corporation to contain, and Parent shall cause the Organizational Documents of its Subsidiaries (including the Surviving Corporation) to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of the Indemnified Parties as those set forth in the Organizational Documents of Parent and its Subsidiaries (including the Surviving Corporation), respectively, as of the date of this Agreement.
(c) From and after the Effective Time, directors Parent and officers the Surviving Corporation, shall, jointly and severally, fulfill and honor (or cause to be fulfilled or honored) in all respects the obligations of Parent its Subsidiaries (including the Surviving Corporation) to the applicable Indemnified Parties pursuant to any indemnification agreements between Parent, the Company or any of their respective Subsidiaries, on the one hand, and such Indemnified Parties, on the other hand, in each case as in effect as of the date of this Agreement, with respect to claims arising out of matters occurring at or prior to the Effective Time.
(d) During the Indemnification Period, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, (i) to the extent required as a result of the termination of coverage under Parent’s directors’ and officers’ liability insurance policy in effect prior to the Closing (including any renewal and/or continuation thereof), Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the cost of which shall be a Parent Transaction Related Expense) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the date on which the Effective Time occurs with respect to any claim related to any period of time at or prior to the Effective Time, with the scope of errors and omissions covered by such insurance reasonably comparable to that provided under Parent’s existing policies as of the date of this Agreement with respect to actual or alleged errors, misleading statements, acts, omissions, neglect, breaches of duty or matters claimed against a director or officer of Parent by reason of him or her serving in such capacity that existed or occurred prior to the Effective Time (including in connection with this Agreement or the transactions contemplated hereby) (the “Parent D&O Tail Policy”). Additionally, at the Company’s request and at the Company’s sole expense (the expense for which shall be added to Parent Net Cash), Parent shall add the Company who become directors and its Subsidiaries as additional insureds solely in their capacity as Parent’s successors in interest on the Parent D&O Tail Policy on Parent’s behalf.
(e) From and after the Effective Time, Parent and the Surviving Corporation shall, jointly and severally, pay all expenses, including reasonable attorneys’ fees, that are incurred by the Indemnified Parties in connection with their successful enforcement of the rights provided to such individuals in this Section 6.10.
(f) The provisions of this Section 6.10 are intended to be in addition to the rights otherwise available to the Indemnified Parties by Law, charter, statute, bylaw or officers agreement, and shall operate for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
(g) In the event Parent or the Surviving Corporation or any of its subsidiaries will be entitled to 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.
(b) In the event that the Surviving Corporation or any of its respective successors or assigns (i) consolidates with or merges into any other person Person and is shall not be the continuing or surviving corporation or entity of such consolidation or merger 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 substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision will shall be made so that the successors and assigns of Parent or the Surviving Corporation assume Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.046.10. Parent shall cause such Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 6.10.
(ch) For six years after Notwithstanding any time limit herein to the contrary, if claim is made hereunder on or prior to the sixth (6th) anniversary of the date on which the Effective Time occurs, the provisions of this Section 6.10 (without regard to any such time limit) shall continue in effect with respect to such claim until the final disposition of such D&O Related Claim.
(i) This Section 6.10 shall survive the consummation of the Merger at the Effective Time, is intended to benefit Parent, the Company, the Surviving Corporation and the Indemnified Parties, shall maintain in effect the Company’s current directors’ be binding on all successors 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’ assigns of Parent 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 and shall be enforceable by the Indemnified Parties and their respective heirs, legatees, representatives, successors and assigns, in each case as if such Persons were party hereto. The obligations of Parent and the Surviving Corporation under this Section 6.10 shall not be terminated or its subsidiaries containing terms with respect modified in such a manner as to coverage and amount no less favorable adversely affect any Indemnified Party to such directors or officers.
(d) The provisions whom this Section 6.10 applies without the consent of the affected Indemnified Party, it being expressly agreed that the Indemnified Parties to whom this Section 6.10 applies shall be third party beneficiaries 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 beneficiary6.10.
Appears in 2 contracts
Samples: Merger Agreement (Diffusion Pharmaceuticals Inc.), Merger Agreement (Diffusion Pharmaceuticals Inc.)
Indemnification, Exculpation and Insurance. (a) The Without limiting any additional rights that any current or former officer or director may have under the Company Charter or Company Bylaws 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, the Surviving Corporation and the Surviving LLC shall indemnify and hold harmless each current (as of immediately prior to the Effective Time) and each former officer and director of the Company from liabilities for acts and against any and all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such person in connection with any action, suit or omissions occurring proceeding, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the indemnified Person is or was an officer, director or employee of the Company or any of its Subsidiaries at or prior to the Effective Time those classes of persons currently entitled to indemnification from the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business Time, whether asserted or with the consent of Parent) as provided in their respective certificates of incorporation claimed prior to, at or 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 in effect as of the date hereof. The Surviving Corporation shall 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, to the fullest extent the Company would have been required to do so under the Company Charter, Company Bylaws or DGCL (for the avoidance 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 action, suit or proceeding, each such indemnified Person shall be entitled to advancement of expenses incurred in the defense of such action, suit or proceeding from the Surviving 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, in its organizational documents provisions for the exculpation, indemnification and advancement of expenses of the current and former directors and officers of the Company who become directors or officers of as currently existing in the Surviving Corporation or any of its subsidiaries will be entitled to indemnification under the Surviving Corporation’s or any of its subsidiaries’ certificate of incorporation Company Charter 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 subsidiariesCompany Bylaws.
(b) In the event that the Surviving Corporation or any For a period 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.04.
(c) For six years after the Effective Time, the Surviving Corporation Parent shall maintain cause to be maintained 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 each Person currently covered by the Company’s directors’ and officers’ liability insurance policy on terms with respect policies (a correct and complete copy of which has been heretofore made available to such coverage and amount no less favorable than those of such policy in effect on Parent) for acts or omissions occurring prior to the date hereofEffective Time; provided provided, that the Surviving Corporation Parent may (i) substitute therefor policies of an insurance company the Surviving Corporation or its subsidiaries containing material terms with respect to of which, including coverage and amount 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 officers(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 nevertheless be obligated to provide such coverage as may be obtained for such 300% amount.
(dc) The provisions of this Section 5.04 are 5.9 (i) shall survive consummation of the Merger and the Second Merger and are intended to be for the benefit of, and will be enforceable by, each indemnified partyPerson, his or her heirs and his or her representatives 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 forfor or limitation of, any other rights to indemnification or contribution that any such person Person may have by contract Contract. Without limiting the generality of the foregoing, the obligations of Parent, the Surviving Corporation and the Surviving LLC under this Section 5.9 shall not be terminated or otherwise. Each modified in such a manner as to adversely affect the rights of any indemnified party Person to whom this Section 5.9 applies unless such Person shall have consented thereto in writing.
(d) In the event that Parent, the Surviving Corporation, the Surviving LLC, or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is an intended third party beneficiarynot the continuing or surviving entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent, the Surviving Corporation 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, set forth in this Section 5.9.
Appears in 2 contracts
Samples: Merger Agreement (Schawk Inc), Merger Agreement (Matthews International Corp)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Parent and hold harmless Merger Sub agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the current or former directors or officers of the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its Subsidiaries as provided in their respective certificates certificate of incorporation or by-laws bylaws (or comparable organizational documents) and any indemnification agreements of the Company (as each is in effect on the date hereof), the existence of which has been disclosed in the Company Disclosure Letter, shall be assumed by the Parent and the Surviving Corporation in the Merger shall assumeCorporation, without further action, as of the Effective Time any indemnification agreements of and shall survive the Company Merger and shall continue in full force and effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 lawterms, and to all other indemnity rights and protections as are afforded to other directors and officers of the Parent shall cause the Surviving Corporation or any of its subsidiariesto honor all such rights.
(b) In the event that If the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and is not 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 substantially all of its properties and assets to any personPerson, or otherwise dissolves the Surviving Corporation, then, and in each such case, the Parent shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.045.9.
(c) For The Parent shall for a period of not less than six years after the Effective Time, the Surviving Corporation shall either (i) maintain in effect the Company’s '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 Persons who are currently covered by the Company’s '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; hereof or (ii) cause to be provided that the Surviving Corporation may substitute therefor policies of the Surviving Corporation or its subsidiaries containing terms by a reputable insurance company coverage no less favorable, including with respect to coverage and amount no less favorable amount, to such directors or officers.
, as the case may be, than the D&O Insurance, so long as the aggregate premium therefor would not be in excess of $1.2 million (d) The provisions of this Section 5.04 are (i) intended to be for such amount 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"Maximum Premium"
Appears in 2 contracts
Samples: Merger Agreement (Electronics for Imaging Inc), Merger Agreement (Printcafe Software Inc)
Indemnification, Exculpation and Insurance. (a) The articles of incorporation and the bylaws of the Surviving Corporation shall indemnify contain the provisions with respect to indemnification and hold harmless exculpation from liabilities liability set forth in the Company's articles of incorporation and bylaws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for acts or omissions occurring at a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time those classes were directors, officers, employees or agents of persons currently entitled to indemnification from the Company, unless such modification is required by law. Parent hereby unconditionally and irrevocably guarantees for the benefit of the Company's directors and officers the obligations of the Company and the Surviving Corporation under the foregoing indemnification arrangements, including any such existing indemnification agreements to which the Company Subsidiary (and any other subsidiary formed after is a party; provided, however, that in no event shall the date hereof in amount of such guarantee exceed an amount permitted for such a guarantee under the ordinary course of business or with the consent terms of Parent's credit agreement.
(b) as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and the Surviving Corporation in the Merger shall assumeIf Parent, without further action, as of the Effective Time any indemnification agreements of the Company in effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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.
(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 shall 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 substantially all of its properties and assets to any person, then, then and in each such case, proper provision will provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation Corporation, as the case may be, shall assume the obligations set forth in this Section 5.045.6.
(c) For six years after 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 shall maintain in effect the Company’s current to provide officers' and directors’ and officers’ ' liability insurance covering in respect of acts or omissions occurring prior to the Effective Time with respect to those persons who are covering each such person currently covered by the Company’s 's officers' and 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 hereof (or, if such insurance policy cannot be obtained, such insurance policy on terms with respect to coverage and amount no less as favorable as can be obtained, subject to such directors or officers.
(d) The provisions the proviso at the conclusion of this Section 5.04 are (i) intended to be 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 benefit ofyear ended April 30, 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 beneficiary1997.
Appears in 2 contracts
Samples: Merger Agreement (Us Office Products Co), Merger Agreement (Mail Boxes Etc)
Indemnification, Exculpation and Insurance. (a) The From and after the Closing Date until six (6) years from the Effective Time, Parent shall cause the Surviving Corporation shall indemnify to indemnify, defend and hold harmless 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 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 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 at on or prior to the Effective Time those classes of persons currently entitled to indemnification from the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) Closing Date as provided in their respective certificates of incorporation the Company Charter Documents or by-laws (or comparable organizational documents) and the Surviving Corporation in the Merger shall assume, without further actionSubsidiary Charter Documents, as of applicable, as in effect immediately prior to the Effective Time Time, 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 as 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 date hereof. The Surviving Corporation shall advance expenses to any Indemnitees, unless such person promptly upon receipt of an undertaking from modification is required by Law or approved by such person that such expenses shall be repaid should it be ultimately determined that such person is not entitled to indemnificationIndemnitees. In addition, Parent shall, or shall cause the Surviving Corporation 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 provides an undertaking to repay such advances to the extent required by applicable Law.
(b) Parent, from and after the Effective TimeClosing Date, directors shall cause the certificate of incorporation and officers of the Company who become directors bylaws or officers comparable organizational documents of the Surviving Corporation or any and each of its subsidiaries will be entitled 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 under than are set forth as of the Surviving Corporation’s or any date of its subsidiaries’ this Agreement in the certificate of incorporation and by-laws (or comparable organizational documents)bylaws of the Company and its Subsidiaries, 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.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.04applicable.
(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 “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 after from the Effective TimeClosing 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 “Existing Policy”) with respect to matters existing or occurring at or prior to the Closing Date; provided, however, that Parent and the Surviving Corporation shall maintain in effect the Company’s current directors’ and officers’ liability insurance covering acts or omissions occurring prior not be required 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 pay annual premiums for any such policy or policies in effect on excess of 200% of the date hereof; provided that 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 may substitute therefor policies shall be entitled to reduce the amount of coverage to the amount of coverage that can be obtained for an annual premium equal to 200% of the Surviving Corporation or its subsidiaries containing terms with respect to coverage and amount no less favorable to such directors or officerscurrent annual premium.
(df) The provisions of this Section 5.04 are 7.7: (i) are intended to be for the benefit of, and will shall be enforceable by, each indemnified partyIndemnitee, 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 Contract or otherwise. Each indemnified party .
(g) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates or merges with or into any other Person and is an intended 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, proper provision shall be made so that the successors and assigns of the Surviving Corporation shall assume all of the obligations thereof set forth in this Section 7.7.
(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 beneficiarybeneficiaries 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) The Surviving Corporation shall indemnify Parent agrees that all rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the current or former directors or officers of the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its subsidiaries as provided in their respective certificates of incorporation or 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 or arrangements of the Company shall survive the Merger and shall continue in full force and effect as of the date hereofin accordance with their terms. The Surviving Corporation shall pay any expenses of any indemnified person under this Section 5.7 in advance expenses of the final disposition of any action, proceeding or claim relating to any such person promptly 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 an any undertaking from to repay such person that advances required under the DGCL. The Surviving Corporation shall cooperate in the defense of any such expenses shall be repaid should it be ultimately determined that such person is not entitled to indemnificationmatter. In addition, from and after the Effective Time, directors and or officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries affiliates will be entitled to 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 subsidiariesCorporation.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation will assume the obligations thereof set forth in this Section 5.045.7.
(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 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. Each indemnified party is .
(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 intended third party beneficiaryannualized basis for such purpose.
Appears in 2 contracts
Samples: Merger Agreement (Associates First Capital Corp), Merger Agreement (Citigroup Inc)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify All rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes and rights to advancement of persons currently entitled to indemnification from the Company and the Company Subsidiary (and any other subsidiary formed after expenses relating thereto existing as of the date hereof in favor of any person who is or prior to the ordinary course Effective Time becomes, or has been at any time prior to the date hereof, a director or officer of business the Company or with the consent any of Parentits Subsidiaries (each, an “Indemnified Party”) as provided in their respective certificates the Company Certificate of incorporation or by-laws (or comparable Incorporation, the Company Bylaws, the equivalent organizational documents) and the Surviving Corporation in the Merger shall assume, without further action, as documents of the Effective Time any indemnification agreements 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 effect as in accordance with their respective terms. For a period of the date hereof. The Surviving Corporation shall 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 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 who become directors or officers and its Subsidiaries in respect of the Surviving Corporation or any of its subsidiaries will be entitled to 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.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.04.
(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 or alleged to have occurred at or prior to the Effective Time with respect to those persons who than are currently covered by as set forth in the Company’s directors’ Company Certificate of Incorporation or the Company Bylaws 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 shall not amend, repeal or otherwise modify the Surviving Corporation may substitute therefor policies Certificate of Incorporation or the bylaws of the Surviving Corporation or its subsidiaries containing terms in any manner that would adversely affect the rights thereunder of any Indemnified Parties with respect to coverage indemnification, exculpation and amount no less favorable to such directors or officerslimitation of liabilities of the Indemnified Parties and advancement of expenses.
(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 2 contracts
Samples: Merger Agreement, Merger Agreement (Nimble Storage Inc)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify All rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes existing in favor of persons currently entitled to indemnification from the current or former directors or officers of the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course or each of business or with the consent of Parent) its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) will be assumed by Parent and the Surviving Corporation in the Merger shall assumeParent will be directly responsible for such indemnification, without further action, as of the Effective Time any indemnification agreements of the Company and will continue in full force and effect as of the date hereof. The Surviving Corporation shall 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 indemnificationin 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 the Surviving Corporation Parent or any of its subsidiaries Sub will be entitled to 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 (including those provided by directors' and officers' liability insurance) as are afforded to other directors and officers of the Surviving Corporation or any of its subsidiaries.
(b) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into Parent. Notwithstanding any other person and is not 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 substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.04.
(c) For six years after the Effective Timehereof, 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 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. Each indemnified party is .
(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 on the date hereof (and having at least the same coverage and containing terms and conditions which are no less advantageous to the persons currently covered by such policies as insured) with respect to matters existing or occurring at or prior to the Effective Time; provided, however, that if the aggregate annual premiums for such insurance at any time during such period exceed 200% of the per annum rate of premium currently paid by the Company and its Subsidiaries for such insurance on the date of this Agreement, then Parent will cause the Surviving Corporation to, and the Surviving Corporation will, provide the maximum coverage that shall then be available at an intended third party beneficiaryannual premium equal to 200% of such rate.
Appears in 2 contracts
Samples: Merger Agreement (Dynamics Corp of America), Agreement and Plan of Merger (CTS Corp)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Razorfish agrees that all rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the Company current or former directors or officers of i-Cube and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification agreements of i-Cube, the existence of which does not constitute a breach of this Agreement, shall be assumed by the Surviving Corporation in the Merger shall assumeMerger, without further action, as of the Effective Time any indemnification agreements of and shall survive the Company Merger and shall continue in full force and effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 lawterms, and to all other indemnity rights and protections as are afforded to other directors and officers of Razorfish shall cause the Surviving Corporation or any of its subsidiariesto honor all such rights.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, Razorfish shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.045.09.
(c) For six years after the Effective Time, the Surviving Corporation Razorfish shall maintain in effect the Company’s 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 the Company’s 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 the Surviving Corporation Razorfish may substitute therefor policies of the Surviving Corporation Razorfish or its subsidiaries containing terms with respect 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 coverage and pay aggregate premiums for insurance under this Section 5.09(c) in excess of 150% of amount no less favorable to of aggregate premiums paid by i-Cube in 1998 on an annualized basis for such directors or officerspurpose.
(d) The provisions of this Section 5.04 are 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. Each indemnified party is an intended third party beneficiary.
Appears in 2 contracts
Samples: Merger Agreement (Razorfish Inc), Merger Agreement (Razorfish Inc)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Parent and hold harmless Sub agree that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the current or former directors or officers of the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its Subsidiaries as provided in their respective certificates of incorporation or by-laws bylaws (or comparable organizational documents) and any indemnification or other agreements of the 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 shall assumeMerger, without further action, as of the Effective Time any indemnification agreements of the Company in effect as of the date hereof. The Surviving Corporation shall 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 at the Effective Time, directors and officers of shall survive the Company who become directors or officers of 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 or any of its subsidiaries will be entitled to indemnification under comply with and honor the foregoing obligations; provided, however, that in the event the Surviving Corporation’s or 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 of its subsidiaries’ certificate of incorporation and by-laws or bylaws (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 Company or any of its subsidiariesSubsidiaries as in effect at or prior to the Effective Time shall not be impaired by any modification of such terms in any amendment or restatement of any such certificate of incorporation or bylaws (or comparable organizational documents) following the Effective Time (including in connection with the filing of the Certificate of Merger).
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of 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 will to be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.04.
(c) For 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 after from the Effective Time, the Surviving Corporation shall maintain in effect the Company’s current Time with respect to directors’ and officers’ liability insurance covering acts or omissions occurring prior to the Effective Time with respect to those persons who are 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 amount that are no less favorable than those of such policy of the Company in effect on the date hereofof 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 may substitute therefor policies of be required to pay or shall the Surviving Corporation or its subsidiaries containing terms Company be permitted to expend, with respect to coverage 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 amount no less favorable 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 directors or officerscoverage, 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 are (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 an intended third party beneficiary.
Appears in 2 contracts
Samples: Merger Agreement (Qualcomm Inc/De), Merger Agreement (Atheros Communications Inc)
Indemnification, Exculpation and Insurance. (a) The 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, and shall cause the Surviving Corporation shall to, indemnify and hold harmless each current (as of the Effective Time) and each former officer or director of the Company or any of its Subsidiaries (collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or related to such Indemnified Parties’ service as a director, officer or employee of the Company or its Subsidiaries or services performed by such Persons at the request of the Company or its Subsidiaries at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including the transactions contemplated by this Agreement, to the fullest extent provided as of the date hereof in the Company Constituent Documents or contractual arrangements of the Company or its Subsidiaries existing as of the date hereof. In the event of any such Action, each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation to the same extent provided under the Company Constituent Documents (or, as relevant, those of the applicable Subsidiary of the Company) as of the date of this Agreement and any existing contractual arrangements of the Company or its Subsidiaries. Notwithstanding anything to the contrary herein (but subject to any superior rights contained in the Company Constituent Documents (or, as relevant, those of the applicable Subsidiary of the Company) or applicable indemnification agreements to which any Acquired Company is a party), prior to making any payment or advance in respect of the indemnification obligations set forth in this Section 5.9, the Person who is requesting such indemnification or advance shall agree to repay such payments or advances if it is ultimately determined that such Person is not entitled to indemnification. No Indemnified Party shall settle, compromise or consent to the entry of any judgment in any threatened or actual Action for which indemnification could be sought by an Indemnified Party hereunder unless Parent consents in writing to such settlement, compromise or consent.
(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 those classes and rights to advancement of persons currently entitled to indemnification from expenses relating thereto now existing in favor of any Indemnified Party as provided in the Company Constituent Documents (or, as relevant, those of the Subsidiary) or in any indemnification agreement between such Indemnified Party and the Company Subsidiary 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.
(and any other subsidiary formed after the date hereof c) Parent shall, in the ordinary course of business or with the consent of Parentits sole discretion, either (i) as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and cause the Surviving Corporation to continue to maintain in effect for a period of six years from the Merger shall assume, without further actionEffective Time for the Persons who, as of the Effective Time any indemnification agreements date of this Agreement, are covered by the Company Company’s and its Subsidiaries’ directors’ and officers’ liability insurance policy (“D&O Insurance”), D&O Insurance with terms and conditions (including scope and coverage amounts) that are, taken as a whole, at least as favorable as provided in effect the Company’s and its Subsidiaries’ policies as of the date hereof. The , or, if such insurance is unavailable, the Surviving Corporation shall advance expenses purchase the best D&O Insurance reasonably available for such six-year period with terms and conditions (including scope and coverage amounts) that are, taken as a whole, at least as favorable as provided in the Company’s and its Subsidiaries’ policies as of the date hereof, or (ii) prior to any 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 claims period of at least six years from the Effective Time with terms and conditions (including scope and coverage amounts) that are, taken as a whole, at least as favorable as the Company’s and its Subsidiaries’ existing D&O Insurance, for claims arising from facts or events that occurred prior to the Effective Time, covering without limitation the transactions contemplated hereby; provided, that the maximum aggregate premium for such person promptly upon receipt of an undertaking from such person D&O Insurance that such expenses Parent shall be repaid should it be ultimately determined that 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 Disclosure Letter; and if such person amount is not entitled sufficient to indemnificationpurchase D&O Insurance in such maximum amount, then Parent shall purchase such amount of insurance with the 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. In additionParent shall cause the Surviving Corporation to comply with its obligations under such policies for the full term of at least six years.
(d) Notwithstanding anything herein to the contrary, from and if any Action (whether arising before, at or after the Effective Time, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be ) with respect to which an Indemnified Party is entitled to indemnification under is instituted against any Indemnified Party on or prior to 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 sixth anniversary of the Surviving Corporation or any Effective Time, then the provisions of its subsidiariesthis Section 5.9 shall continue in effect until the final disposition of such Action.
(be) 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 5.9 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 its their respective successors or assigns (i) consolidates with or merges into any other person Person and is not 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 substantially all a majority of its properties and assets to any personPerson, then, and in each such case, proper provision will shall be made so that the successors and assigns of the Surviving Corporation assume or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.045.9.
(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 2 contracts
Samples: Merger Agreement (Audience Inc), Merger Agreement (Knowles Corp)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation From and after the Closing Date, Purchaser shall indemnify cause the Company and its Subsidiaries to continue to indemnify, defend and hold harmless harmless, to the fullest extent permitted under applicable Law, the individuals who on or prior to the Closing Date were directors, officers or employees of the Company 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 request of the Company or any of the Subsidiaries at any time prior to the Closing Date to the fullest extent that the Company or its Subsidiaries, as the case may be, would have been permitted under applicable Law. 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 those classes of persons currently entitled to indemnification from the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) Closing Date as provided in their the respective certificates certificate of incorporation or 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 documents of the Company or any of the Subsidiaries as now in effect shall survive the Closing Date and shall continue in full force and effect 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 date hereofIndemnitees, unless such modification is required by Law. The Surviving Corporation In addition, Purchaser shall advance pay any expenses of any Indemnitee under this Section 8.7, as incurred to any such the fullest extent permitted under applicable Law, provided that the person promptly upon receipt of to whom expenses are advanced provides an undertaking from to repay such person that such expenses shall be repaid should advances (i) to the extent required by applicable Law or (ii) if it be is ultimately determined that such person is not entitled to indemnification. In addition.
(b) Purchaser, from and after the Effective TimeClosing Date, directors and officers of shall cause (i) the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to indemnification under the Surviving Corporation’s or any of its subsidiaries’ 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)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 a manner that would adversely affect the rights thereunder of the Indemnitees.
(c) 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 8.7 with counsel selected by the Indemnitee; provided, however, that (i) Purchaser shall be permitted to participate in the defense of 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 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 same case may be, shall 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 furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be amended from time reasonably requested in connection therewith.
(f) For the six-year period commencing immediately after the Closing Date, Purchaser shall maintain in effect directors’ and officers’ liability insurance covering acts or omissions occurring prior to time in accordance the Closing Date with their respect to those persons who are currently covered by the Company’s and the Subsidiaries’ directors’ and officers’ liability insurance policies (true, correct and complete copies of which have been heretofore made available to the Purchaser) on terms with respect to such coverage and applicable law, amount no less favorable to the Company’s and to all other indemnity rights and protections as are afforded to other 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 Surviving Corporation current annual premiums paid by the Company and its Subsidiaries in the aggregate for such insurance coverage (the “Maximum Amount”) to maintain or any procure such insurance coverage as required hereunder. In the event that the annual premiums required to procure or maintain such insurance coverage would exceed the Maximum Amount, Purchaser shall procure and maintain for such six-year period as much coverage as reasonably practicable for the Maximum Amount or provide Sellers the option of its subsidiariespaying the difference.
(bg) The provisions of this Section 8.7: (i) are intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs and his or her representatives; and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract or otherwise.
(h) In the event that the Surviving Corporation Purchaser 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 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 substantially all of its properties and assets Assets to any person, then, and in each such case, proper provision will shall be made so that the successors and assigns of the Surviving Corporation Purchaser shall assume all of the obligations thereof set forth in this Section 5.048.7.
(ci) For six years after 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 Effective Time, written consent of 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 affected Indemnitee (it being expressly agreed that the Surviving Corporation may substitute therefor policies of the Surviving Corporation or its subsidiaries containing terms with respect Indemnitees to coverage and amount no less favorable to such directors or officers.
(d) The provisions whom this Section 8.7 applies shall be third party beneficiaries 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 beneficiary8.7).
Appears in 2 contracts
Samples: Stock Purchase Agreement (UCI Holdco, Inc.), Stock Purchase Agreement (United Components Inc)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify CBI and hold harmless Sub 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 the Company Subsidiary (and any other subsidiary formed after rights for advancement of expenses) now existing in favor of the date hereof in the ordinary course current or former directors or officers of business IXC or with the consent of Parent) its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other agreements of IXC as in effect on the date hereof shall be assumed by the Surviving Corporation in the Merger shall assumeMerger, without further action, as of the Effective Time any indemnification agreements of and shall survive the Company Merger and shall continue in full force and effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 subsidiariesterms.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, CBI shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.045.08.
(c) For six years from and after the Effective Time, the Surviving Corporation CBI shall maintain in effect the Company’s IXC's current directors’ ' and officers’ ' liability insurance covering acts or omissions occurring prior to the Effective Time with respect to those persons who are covering each person currently covered by the Company’s IXC's directors’ ' and officers’ ' liability insurance policy on terms with respect to such coverage and amount amounts no less favorable than those of such policy in effect on the date hereof; provided that the Surviving Corporation CBI may substitute therefor policies of the Surviving Corporation 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 5.04 are 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. Each indemnified party is an intended third party beneficiary.
Appears in 2 contracts
Samples: Merger Agreement (Cincinnati Bell Inc /Oh/), Merger Agreement (Trustees of General Electric Pension Trust)
Indemnification, Exculpation and Insurance. (a) The Parent agrees to cause each of the Trident Surviving Corporation shall indemnify and hold harmless the Sun Surviving Corporation to agree that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the applicable Effective Time those classes now existing in favor of persons currently entitled to indemnification from the Company current or former directors or officers of Trident or the Trident Subsidiaries or Sun and the Company Subsidiary (and any other subsidiary formed after Sun Subsidiaries, as applicable, to the date hereof in the ordinary course of business or with the consent of Parent) as fullest extent provided in by their respective articles of association, certificates of incorporation or by-laws bylaws (or comparable organizational documents) and any indemnification or other similar agreements of Trident or any of the Surviving Corporation in Trident Subsidiaries or Sun or any of the Merger shall assume, without further actionSun Subsidiaries, as of the Effective Time any indemnification agreements of the Company applicable, as in effect as of, in the case of Trident, the date hereof. The Surviving Corporation of this Agreement or, in the case of Sun, the date Sun countersigns this Agreement shall advance expenses to any such person promptly upon receipt of an undertaking from such person that such expenses survive the Mergers and shall be repaid should it be ultimately determined that such person is not entitled to indemnification. In addition, from continue in full force and after the Effective Time, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 effect 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 subsidiariesterms.
(b) In the event that subsequent to the Mergers either the Trident Surviving Corporation or the Sun Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person Person and is not 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 substantially all of its properties and assets to any personPerson, then, and in each such case, the Trident Surviving Corporation or the Sun Surviving Corporation, as applicable, shall cause proper provision will to be made so that the successors and assigns of the Trident Surviving Corporation or the Sun Surviving Corporation, as applicable, assume the obligations set forth in this Section 5.046.9.
(c) For six a period of seven (7) years after from the applicable Effective Time, Parent shall procure that each of the Trident Surviving Corporation and the Sun Surviving Corporation shall maintain in effect the Companyexculpation, 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 current and Sun’s existing policies of directors’ and officers’ liability insurance covering acts or omissions occurring prior to the Effective Time and fiduciary liability insurance, with respect to those persons who are currently covered matters arising on or before the applicable Effective Time (including in connection with this Agreement and the transactions or actions contemplated by this Agreement), and Parent shall cause such policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the 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 Trident Surviving Corporation or its subsidiaries containing terms with the Sun Surviving Corporation, as applicable; provided, however that neither Trident nor Sun shall pay or agree to pay, and the Trident Surviving Corporation or the Sun Surviving Corporation, as applicable, shall not be required to pay, in the aggregate in excess of 300% of the last annual premium paid by Trident or Sun, as applicable, prior to, in the case of Trident, the date of this Agreement or, in the case of Sun, the date Sun countersigns this Agreement in respect to of such “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 and amount no less favorable as reasonably practicable up to such directors or officersmaximum amount.
(de) The provisions of this Section 5.04 6.9 shall survive consummation of the Mergers and are (i) intended to be for the benefit of, and will be enforceable by, each indemnified partycurrent or former director or officer of Trident and Sun, 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 an intended third party beneficiary.
Appears in 2 contracts
Samples: Merger Agreement (3d Systems Corp), Merger Agreement (3d Systems Corp)
Indemnification, Exculpation and Insurance. (a) The articles of incorporation and the bylaws of the Surviving Corporation shall indemnify contain the provisions with respect to indemnification and hold harmless exculpation from liabilities liability set forth in the Company’s articles of incorporation and bylaws on the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of 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.
(b) For six years from the Effective Time, Parent shall maintain in effect directors’ and officers’ liability insurance covering claims arising out of acts or omissions occurring at or prior to the Effective Time those classes of persons currently entitled to indemnification from the Company and the Company Subsidiary (and any other subsidiary formed which are asserted after the date hereof in the ordinary course of business or with the consent of Parent) as provided in their respective certificates of incorporation or 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 in effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.04.
(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 against those persons who are currently covered by the Company’s directors’ and officers’ liability insurance policy (a copy of which has been heretofore made available to Parent) on terms 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 indemnified parties than the terms of this Section 5.04 are the Company’s current insurance coverage; provided, however, that (i) intended to be for in lieu of the benefit ofpurchase of such insurance by the Surviving Corporation or Parent, the Company may purchase a six-year extended reporting period endorsement (“reporting tail coverage”) under its existing directors’ and will be enforceable by, each indemnified party, his or her heirs and his or her representatives officers’ liability insurance coverage and (ii) in addition if the cost of such insurance shall exceed $250,000, then Parent shall cause the Surviving Corporation to, and not the Surviving Corporation shall, provide coverage affording the same protection as maintained by Parent as of such date for its officers and directors.
(c) The obligations of the Company, the Surviving Corporation and Parent contained in substitution forthis Section 5.7 shall be binding on the successors and assigns of Parent and the Surviving Corporation. If Parent, the Surviving Corporation or any of their successors or assigns (i) consolidates with or merges into any other rights Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to indemnification any Person, then and in each such case, proper provisions shall be made so that the successors and assigns of Parent or contribution that any such person the Surviving Corporation, as the case may have by contract or otherwise. Each indemnified party is an intended third party beneficiarybe, shall assume the obligations set forth in this Section 5.7.
Appears in 2 contracts
Samples: Merger Agreement (Venture Catalyst Inc), Merger Agreement (International Game Technology)
Indemnification, Exculpation and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation shall contain all of the provisions limiting or eliminating 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 in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who at or prior to the Effective Time were directors, officers, employees or 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 shall indemnify and hold harmless from each present and former director, officer or employee of the Company or any of its subsidiaries (collectively, the "INDEMNIFIED PARTIES") against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities for and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time those classes of persons currently entitled Time, to indemnification from the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) same extent as provided in their respective certificates the Company certificate of incorporation or by-laws bylaws, in each case for a period of six (or comparable organizational documents6) and the Surviving Corporation in the Merger shall assume, without further action, as of the Effective Time any indemnification agreements of the Company in effect as of the date hereof. The Surviving Corporation shall 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 years after the Effective Time. In the event of any such claim, directors action, suit, proceeding or investigation (whether arising before or after the Effective Time) and officers subject to the specific terms of any indemnification contract, (i) any counsel retained by the Company who become directors or officers of Indemnified Parties for any period after the Surviving Corporation or any of its subsidiaries will Effective Time shall be entitled reasonably satisfactory to 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.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.04.
(c) For six years after the Effective Time, the Surviving Corporation shall maintain pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received; provided that the Indemnified Parties shall be required to reimburse the Surviving Corporation for such payments in effect 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 any such matter; 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); and provided, further, that, in the event that any claim or claims for indemnification are asserted or made within such six (6)-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may 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) The Surviving Corporation shall honor and fulfill in all respects the obligations of 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 's directors and officers existing at or before the Effective Time that are listed in SCHEDULE 6.05(C).
(d) In addition, Purchaser shall provide, or cause the Surviving Corporation to provide, for a period of not less than six (6) years after the Effective Time, the Company's current directors’ directors and officers’ liability officers with an insurance covering acts and indemnification policy that provides coverage for events occurring at 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 "D&O INSURANCE") that is no less favorable than those the existing policy or, if substantially equivalent insurance coverage is unavailable, the next best available coverage; provided, however, that Purchaser and the Surviving Corporation shall not be required to pay an annual premium for the D&O Insurance in excess of 200% of the annual premium currently paid by the Company for such policy insurance, but in such case shall purchase as much such coverage as possible for such amount.
(e) From and after the Effective Time, Purchaser shall 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 manner and at any time rights that any Indemnified Party or 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; provided that 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 may substitute therefor policies and all successors and assigns of the Surviving Corporation, in accordance with their respective terms.
(g) This Section 6.05 shall survive the consummation of the Merger at the Effective Time, is intended to benefit the Company, the Surviving Corporation, the Indemnified Parties and the Covered Persons, shall be binding on all successors and assigns 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, Purchaser and will shall be enforceable by, each indemnified party, his or her heirs by the Indemnified Parties 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 beneficiarythe Covered Persons.
Appears in 2 contracts
Samples: Merger Agreement (Lamela Luis E), Merger Agreement (Ramsay Youth Services Inc)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation For six years after the Effective Time and thereafter with respect to any claims during such six year period, NTL shall indemnify indemnify, defend and hold harmless from the current or former directors and officers of Partners and its subsidiaries (each, an "Indemnified Party") against all costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities for (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of acts or omissions occurring at or prior to the Effective Time those classes to the fullest extent that Partners is permitted to indemnify such persons under the laws of persons currently entitled to indemnification from the Company Bermuda and the Company Subsidiary (and any other subsidiary formed after Partners's bye-laws as in effect on the date hereof in the ordinary course of business or with the consent of Parent) as provided in their respective certificates of incorporation or 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 in effect as of the date hereof. The Surviving Corporation NTL shall advance expenses (including expenses constituting Costs described in Section 5.8(d)) as incurred 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 indemnificationthe fullest extent permitted under applicable law. In addition, from and after the Effective Time, directors and officers of the Company Partners who become directors or officers of NTL or the Surviving Corporation or any of its subsidiaries Amalgamated Company will be entitled to 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 subsidiariesNTL.
(b) In the event that the Surviving Corporation NTL 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation NTL assume the obligations set forth in this Section 5.045.8.
(c) For six years after the Effective Time, the Surviving Corporation NTL shall maintain in effect the Company’s provide to Partners's current directors’ directors and officers’ 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 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 Surviving Corporation may substitute therefor policies of the Surviving Corporation or its subsidiaries containing terms with respect aggregate to coverage and amount no less favorable to maintain such directors or officerscoverage.
(d) The provisions of this Section 5.04 are 5.8 (i) are intended to be for the benefit of, and will be enforceable by, each indemnified partyIndemnified 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 Indemnified Party is an intended hereby expressly made a third party beneficiarybeneficiary 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) The Surviving Corporation shall indemnify Parent and hold harmless 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 and rights to advancement of persons currently entitled to indemnification from expenses relating thereto now existing in favor of each present (as of the Effective Time) and former officer, director or employee of the Company and or any of its Subsidiaries (the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent“Indemnified Parties”) as provided in their respective certificates the articles of incorporation or by-laws bylaws (or comparable organizational documents) of the Company and its Subsidiaries or in any indemnification agreement between such Indemnified Party and the Company or any of its Subsidiaries, in each case as in effect on the date hereof and in the form previously made available to Parent, 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 for a period of seven years after the Effective Time. For the avoidance of doubt, notwithstanding anything contained in Section 2.5, (i) during such seven-year period, Parent and the Surviving Corporation in shall not amend, repeal or otherwise modify the Merger shall assume, without further action, as Surviving Corporation Articles or the bylaws of the Effective Time Surviving Corporation in any indemnification agreements manner that would affect adversely the rights thereunder of any Indemnified Party to indemnification, exculpation and advancement of expenses, except to the Company extent required by Law, and (ii) in effect as of connection with current pending Actions, including those listed in Schedule 6.11, expenses consistent with the budgets provided to Parent prior to the date hereof. The hereof shall be deemed reasonable for purposes of advancement of expenses; provided, however, nothing in this clause (ii) shall be deemed to limit the Surviving Corporation shall Corporation’s obligation to advance expenses to any which the Indemnified Parties are otherwise entitled or otherwise act as a presumption that attorneys’ fees and expenses in excess of 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 budgets are not entitled to indemnificationreasonable. In addition, from From and after the Effective Time, directors Parent shall, and officers shall cause the Surviving Corporation to, assume and perform all rights to indemnification existing in favor of, and all rights of advancement of expenses to, any Indemnified Party as provided in any indemnification or other agreements of the Company who become directors or officers of as in effect on the Surviving Corporation or any of its subsidiaries will be entitled date hereof and in the form previously made available to 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 subsidiariesParent.
(b) For a period of seven years after 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 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; provided further, that if the Surviving Corporation purchases a “tail policy” and the coverage thereunder costs more than 200% of such last annual premium, the Surviving Corporation shall purchase the maximum amount of coverage that can be obtained for 200% of such last annual premium. Notwithstanding anything contained herein to the contrary, the Company, at its option, may purchase, at any time prior to the Effective Time, a seven-year prepaid “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.
(c) Notwithstanding anything herein to the contrary, if any Action (whether arising before, at or after the Effective Time) is instituted against any Indemnified Party on or prior to the seventh anniversary of the Effective Time, the provisions of this Section 6.11 shall continue in effect until the final disposition of such Action even if such disposition occurs after the seventh anniversary of the Effective Time.
(d) The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise. The provisions of this Section 6.11 shall survive the consummation of the Merger and, notwithstanding any other provision of this Agreement that may be to the contrary, expressly are intended to benefit, and shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives.
(e) In the event that the Surviving Corporation or Parent or any of its their respective successors or assigns (i) consolidates with or merges into any other person Person and is shall 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 substantially all a majority of its properties and assets to any personPerson, then, and in each such case, proper provision will shall be made so that the successors and assigns of the Surviving Corporation assume or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.046.11.
(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 2 contracts
Samples: Merger Agreement (Stec, Inc.), Merger Agreement (Stec, Inc.)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Parent agrees that all rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes existing in favor of persons currently entitled to indemnification from the current or former directors or officers of the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its Subsidiaries as provided in their respective certificates certificate of incorporation or by-laws bylaws (or comparable organizational documents) and any indemnification agreements of the Company (as each is in effect prior to the Effective Time), shall be assumed by the Surviving Corporation in the Merger shall assumeCorporation, without further action, as of the Effective Time and shall survive the Merger and shall continue in full force and effect in accordance with their terms, and the Parent shall cause the Surviving Corporation to honor all such rights. In the event that any indemnification agreements 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 Company's directors' and officers' liability insurance policy currently in effect as effect. The certificate of incorporation and bylaws of the date hereof. The Surviving Corporation shall advance expenses will contain provisions with respect to any such person promptly upon receipt indemnification and elimination of an undertaking from such person that such expenses shall be repaid should it be ultimately determined that such person is not entitled liability for monetary damages at least as favorable to indemnification. In addition, from and after the Effective Time, directors and officers of the Company who become directors or officers of as those set forth in the Surviving Corporation or any of its subsidiaries will be entitled to indemnification under the Surviving Corporation’s or any of its subsidiaries’ current certificate of incorporation and by-laws (or comparable organizational documents), as bylaws of the same may be amended from time to time in accordance with their terms and applicable lawCompany, and to all other indemnity for a period of six (6) years from the Effective Time, those provisions will not be repealed or amended or otherwise modified in any manner that would adversely affect the rights and protections as are afforded to other thereunder of the directors and officers of the Surviving Corporation or any of its subsidiariesCompany, except to the extent, if any, that such modification is required by applicable law.
(b) In the event that If the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and is not 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 substantially all of its properties and assets to any personPerson, or otherwise dissolves the Surviving Corporation, then, and in each such case, the Parent shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.045.7.
(c) For six years after 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 Surviving Corporation Company shall maintain in effect purchase directors' and officers' liability insurance coverage for the Company’s current directors’ 's directors and officers’ liability insurance covering acts 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 omissions occurring prior to (ii) the Effective Time with respect to those persons who 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 currently covered by no less advantageous to the Company’s directors’ 's current or former directors and officers’ liability insurance policy on terms with respect to such coverage and amount no less favorable officers than those of such policy in effect on the date hereof; , provided that the Surviving Corporation may substitute therefor policies 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 Surviving Corporation 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 subsidiaries containing terms with respect directors and officers an indemnification agreement in a form previously provided to coverage and amount no less favorable to such directors or officersParent.
(d) The provisions of this Section 5.04 5.7 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 or contribution that any such person Person may have by contract or otherwise. Each indemnified party is an intended third party beneficiary.
Appears in 2 contracts
Samples: Merger Agreement (Firepond Inc), Merger Agreement (Firepond Inc)
Indemnification, Exculpation and Insurance. (a) The Parent acknowledges and agrees that the Surviving Corporation shall indemnify by operation of law assume the obligations with respect to all rights to indemnification and hold harmless exculpation from liabilities liabilities, including advancement of expenses, for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the current or former directors, officers, employees or agents of the Company or any of its Subsidiaries to the same extent as provided in the Company’s or any of its Subsidiaries’ certificate or articles of incorporation, bylaws or other organizational documents or any indemnification Contract between such directors, officers, employees or agents and the Company Subsidiary or any of its Subsidiaries (and any other subsidiary formed after in each case, as in effect on the date hereof in the ordinary course of business or with the consent of Parent) as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and the Surviving Corporation in the Merger shall assumethis Agreement), without further action, as of the Effective Time any indemnification agreements of and such obligations shall survive the Company Merger and shall continue in full force and effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 for a period of not less than six (6) years from the Effective Time and applicable law, and that all rights to all other indemnity rights and protections as are afforded to other directors and officers indemnification in respect of the Surviving Corporation any action pending or asserted or any claim made within such period shall continue until the disposition of its subsidiariessuch 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 Person and is not the continuing or surviving corporation or entity of such consolidation or merger 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 substantially all of its properties and other assets to any personPerson, then, and in each such case, the Surviving Corporation shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation shall expressly assume the obligations set forth in this Section 5.046.04 for a period of not less than six (6) years from the Effective Time.
(c) For six (6) years after the Effective Time, the Surviving Corporation shall maintain in effect (directly or indirectly through the Company’s current existing insurance programs) in effect directors’ and officers’ liability insurance covering in respect of acts or omissions occurring at or prior to the Effective Time with respect to those persons who are Time, covering each person currently covered by the Company’s directors’ and officers’ liability insurance policy maintained by the Company or its Subsidiaries on terms with respect to such coverage and amount no less favorable than those of such policy in effect on amounts comparable to the date hereofinsurance 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 or shall first use its subsidiaries containing terms with respect 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 an annual premium in excess of 200% of the last annual premium paid by the Company prior to the date of this Agreement (or, in the case of a “tail” policy obtained pursuant to the preceding provision, shall not be required to pay an aggregate premium therefor in excess of an amount no less favorable equal to 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 directors or officersmaximum amount.
(d) The provisions of this Section 5.04 are 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 representatives, and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person Person may have by contract Contract or otherwise. Each It is expressly agreed that the indemnified party is an intended parties shall be third party beneficiarybeneficiaries 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) The Surviving Corporation shall indemnify All rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes and rights to advancement of persons currently entitled expenses relating thereto now existing in favor of any person who is or prior to indemnification from the Company and the Company Subsidiary (and Effective Time becomes, or has been at any other subsidiary formed after time prior to the date hereof in of this Agreement, a director, officer, trustee, employee, agent or fiduciary (including as a fiduciary with respect to an employee benefit plan) of the ordinary course Company, any of business its Subsidiaries or with the consent any of Parenttheir respective predecessors (each, an “Indemnified Party”) as provided in their respective certificates the Company Certificate of incorporation Incorporation, the Company Bylaws, the organizational documents of any Subsidiary of the Company or by-laws any indemnification or employment agreement or other Contract between such Indemnified Party and the Company or any of its Subsidiaries (or comparable organizational documentsin 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) and shall be assumed by the Surviving Corporation in at the Effective Time, survive the Merger and continue in full force and effect in accordance with their terms, and shall assumenot be amended, without further action, as repealed or otherwise modified for a period of six years following the Effective Time Date in any indemnification agreements 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 in effect as of the date hereof. The Surviving Corporation shall advance expenses to or 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 additionindemnification or employment agreement or other Contract, from and after the Effective Time, directors and officers 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 who become directors or officers 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, the Surviving Corporation shall maintain or cause to be maintained in effect the current policies of directors’ and officers’ liability insurance maintained on the date hereof by the Company and its Subsidiaries (the “Current Policies”); provided, however, that the Surviving Corporation may, and in 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 amount and containing terms and conditions that are no less favorable to the covered persons in respect of claims or events that existed or occurred at or prior to the Effective Time under the Current Policies; provided, further, however, that in satisfying its obligation under this Section 5.05(c) the Surviving Corporation shall not be obligated to pay for coverage for any 12-month period aggregate premiums for insurance in excess of 300% of the amount paid annually by the Company 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 Maximum Annual Amount. In lieu of the foregoing insurance coverage, Parent may direct the Company to purchase, at or prior to the Effective Time, prepaid (or “tail”) directors’ and officers’ liability insurance coverage no less favorable than the coverage described in the preceding sentence; provided that the Company shall not be required to pay any amounts in respect of such coverage prior to the Closing.
(d) In the event that either Parent or the Surviving Corporation or any of its subsidiaries will be entitled to 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.
(b) In the event that the Surviving Corporation or any of its 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all a substantial portion of its properties and other assets to any person, or if Parent dissolves the Surviving Corporation, then, and in each such case, Parent shall cause proper provision will to be made so that the applicable successors and assigns of the Surviving Corporation or transferees shall succeed to, and expressly assume the obligations set forth in this Section 5.045.05.
(ce) For six years after the Effective Time, Parent shall cause the Surviving Corporation shall maintain in effect to perform all of 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 obligations of the Surviving Corporation or its subsidiaries containing terms with respect 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 coverage and amount no less favorable to such directors or officersthis Section 5.05.
(df) The provisions of this Section 5.04 5.05 are (i) intended to be for the benefit of, and will be enforceable by, each indemnified partyIndemnified Party, his or her heirs and his or her representatives 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 Notwithstanding anything herein to the contrary, if any Claim (whether arising before or after the Effective Time) is an intended third party beneficiarymade 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 (Paxar Corp), Merger Agreement (Avery Dennison Corporation)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify DWD agrees that all rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the Company current or former directors or officers of MS and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification agreements of MS, the existence of which does not constitute a breach of this Agreement, shall be assumed by DWD, as the Surviving Corporation in the Merger shall assumeMerger, without further action, as of the Effective Time any indemnification agreements of and shall survive the Company Merger and shall continue in full force and effect as of the date hereof. The Surviving Corporation shall 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 indemnificationin accordance with their terms. In addition, from and after the Effective Time, directors and officers of the Company MS who become directors or officers of the Surviving Corporation or any of its subsidiaries DWD will be entitled to 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 subsidiariesDWD.
(b) In the event that the Surviving Corporation DWD 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation DWD assume the obligations set forth in this Section 5.045.08.
(c) For six years after the Effective Time, the Surviving Corporation DWD shall maintain in effect the Company’s MS'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 MS'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 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. Each indemnified party is an intended third party beneficiary.
Appears in 2 contracts
Samples: Merger Agreement (Dean Witter Discover & Co), Merger Agreement (Morgan Stanley Group Inc /De/)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify All rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the current or former directors or officers of the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification agreements of the Company, the existence of which does not constitute a breach of this Agreement, shall be assumed by the Surviving Corporation in the Merger shall assumeMerger, without further action, as of the Effective Time any indemnification agreements of and shall survive the Company Merger and shall continue in full force and effect as of (to the date hereof. The Surviving Corporation shall 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 extent consistent with applicable law) in accordance with their terms.
(b) For six years after the Effective Time, directors Parent shall cause the Surviving Corporation to honor its commitments and officers of obligations pursuant to this Section 5.5. In the Company who become directors event that Parent or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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.
(b) In the event that the Surviving Corporation or any of its 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of Parent or the Surviving Corporation Corporation, as the case may be, assume the obligations set forth in this Section 5.045.5(b).
(c) For six years after the Effective Time, the Surviving Corporation shall maintain in effect the Company’s current provide officers' and directors’ and officers’ ' liability insurance covering in respect of acts or omissions occurring prior to the Effective Time with respect Time, including but not limited to those persons who are the transactions contemplated by this Agreement, covering each person currently covered by the Company’s 's officers' and directors’ and officers’ ' liability insurance policy, or who becomes covered by such policy prior to the Effective Time, 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 satisfying its obligation under this Section 5.5 the Surviving Corporation may substitute therefor policies shall not be obligated to pay annual premiums in excess of 175% of the Surviving Corporation or amount per annum the Company paid in its subsidiaries containing terms with respect to coverage and amount no less favorable to such directors or officerslast full fiscal year.
(d) The provisions of this Section 5.04 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 foror, 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 2 contracts
Samples: Merger Agreement (Score Acquisition Corp), Agreement and Plan of Merger (Talley Industries Inc)
Indemnification, Exculpation and Insurance. (a) The From and after the Effective Time, Parent shall, or shall cause the Surviving Corporation shall to, indemnify and hold harmless 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 the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the written consent of Parent) as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and to cause the Surviving Corporation in the Merger shall to assume, without further action, as of the Effective Time any indemnification agreements of the Company in effect as of the date hereof. The ; 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, directors and officers of the Company who become directors or officers of the Surviving Corporation Parent or any of its subsidiaries will be entitled to indemnification under the Surviving Corporation’s Parent'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 Parent or any of its subsidiaries.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.045.03.
(c) For six years after Pursuant to the Effective TimeExecutive Liability and Indemnification Polices Maintenance Agreement between Company and Comerica Incorporated, dated as the date hereof, the Surviving Corporation shall maintain in effect parties hereby acknowledge that the Company’s current directors’ 's directors and officers’ liability insurance covering officers shall be insured for any acts or of omissions occurring prior to the Effective Time with respect pursuant 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 Insurance Policies. Parent shall, or shall cause the Surviving Corporation may substitute therefor policies of the Surviving Corporation or its subsidiaries containing terms with respect Corporation, to coverage and amount no less favorable make all deductible payments relating to claims under such directors or officersInsurance Policies.
(d) The provisions of this Section 5.04 are 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. Each indemnified party is an intended third party beneficiary.
Appears in 2 contracts
Samples: Merger Agreement (Official Payments Corp), Merger Agreement (Tier Technologies Inc)
Indemnification, Exculpation and Insurance. (a) The Parent agrees to cause the Surviving Corporation shall indemnify to maintain in effect in accordance with their terms all rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the current or former directors or officers of the Company and its Subsidiaries (collectively, the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent"Indemnified Parties") as provided in either (x) their respective certificates articles of incorporation or by-laws bylaws (or comparable organizational documents) and the Surviving Corporation set forth in the Merger shall assume, without further action, as of the Effective Time any indemnification agreements Section 4.1 of the Company Disclosure Schedule or Section 7.1 of the Company Disclosure Schedule and/or (y) the indemnification agreements in effect as of the date hereof. The Surviving Corporation shall advance expenses hereof set forth in Section 7.1 of the Company Disclosure Schedule, copies of which have been delivered 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 indemnificationParent. In additionthe event that, from and after prior to the Effective Time, the Company presents to Parent a proposal for the purchase of a policy for directors' and officers' insurance covering actions of directors and officers prior to the Effective Time, Parent agrees to consider approval of such proposal, provided that (i) the aggregate cost to be incurred by the Company who become directors or officers in connection with the purchase of such policy does not exceed $100,000 and (ii) neither Parent nor the Surviving Corporation or shall have any obligation to procure any such policy subsequent to the Effective Time. To the extent that Parent approves in writing a proposal for the purchase of its subsidiaries will be entitled to indemnification under directors' and officers' insurance as contemplated by the Surviving Corporation’s or any preceding sentence of its subsidiaries’ certificate of incorporation and by-laws (or comparable organizational documentsthis Section 7.1(a), as the same may existence of such policy at the Effective Time shall not be amended from time deemed 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 constitute a violation or breach of the Surviving Corporation any representation or any of its subsidiarieswarranty set forth herein.
(b) In This Section 7.1 shall survive the event that consummation of the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Merger and is not 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 shall be binding on all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of Parent and the Surviving Corporation assume the obligations set forth in this Section 5.04Corporation.
(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 7.1 are (i) intended to be for the benefit of, and will shall be enforceable by, each indemnified party, the Indemnified Parties and 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 beneficiarylegal representatives.
Appears in 2 contracts
Samples: Merger Agreement (Capitol Transamerica Corp), Merger Agreement (Alleghany Corp /De)
Indemnification, Exculpation and Insurance. (a) The 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 of the Acquired Companies as provided in their respective certificates of incorporation, bylaws or other comparable organizational documents and any indemnification or other agreements of the Acquired Companies with any of the current or former 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, Parent 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 from liabilities (and advance funds in respect of each of the foregoing and costs of defense to) each current and former director or officer of any of the Acquired Companies (each such individual, together with such individual’s heirs, executors or administrators, an “Indemnified Party”), in each case against any losses, claims, damages, liabilities, fees, costs and expenses (including attorneys’ fees and disbursements), judgments, fines and amounts paid in settlement (collectively, “Losses”) in connection with any actual or threatened Action, whether civil, criminal, administrative or investigative, arising out of, relating to or in connection with the fact that such Indemnified Party is or was an officer, director or fiduciary of any of the Acquired Companies at or prior to the Effective Time; provided, however, that the Indemnified Party to whom expenses are advanced provides an undertaking, if and only to the extent required by applicable Law, to repay such advances if it is ultimately determined by a court of competent jurisdiction that such Indemnified Party is not entitled to indemnification for acts such expenses. No Indemnified Party shall settle, compromise or omissions occurring consent to the entry of any judgment in any threatened or actual Action for which indemnification could be sought by an Indemnified Party hereunder unless Parent consents in writing to such settlement, compromise or consent (which consent shall not be unreasonably withheld, conditioned or delayed).
(c) Parent shall, in its sole discretion, either (i) provide, or shall cause the Surviving Corporation to provide, following the Effective Time, the Company’s current directors and officers an insurance and indemnification policy or (ii) obtain, at or prior to the Effective Time those classes so long as it does not result in gaps or lapses of persons currently entitled coverage with respect to matters occurring prior to the Effective Time, prepaid (or “tail”) directors’ and officers’ insurance and indemnification policies that, in either case, provide coverage for events occurring prior to the Effective Time for an aggregate period of not less than six (6) years from the Company and Effective Time (the Company Subsidiary (and any other subsidiary formed after the date hereof “Continuing D&O Insurance”) that are no less favorable in the ordinary course of business or aggregate (with respect to limits and deductibles) to the consent of Parent) as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) Company’s existing policy or, if such insurance coverage is unavailable, the best available similar coverage; provided, however, that Parent and the Surviving Corporation shall not be required to pay an annual premium for the Continuing D&O Insurance in the Merger shall assume, without further action, as excess of three hundred percent (300%) of the Effective Time last annual premium paid prior to the date of this Agreement (the “Company’s Current Premium”). If such premiums for such insurance would at any indemnification agreements time exceed three hundred percent (300%) of the Company Company’s Current Premium, then Parent shall cause to be maintained policies of such insurance which, in effect as Parent’s good faith determination, provide the maximum coverage available at an annual premium equal to three hundred percent (300%) of the date hereof. The Surviving Corporation shall 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 additionCompany’s Current Premium.
(d) If Parent, from and after the Effective Time, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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.
(b) In the event that the Surviving Corporation or any of its respective successors or assigns (i) consolidates with or merges into any other person Person and is not 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 substantially all of its properties and assets to any personassets, then, and in each such case, proper provision will be made so that the successors Parent and assigns of the Surviving Corporation shall ensure that such surviving corporation or entity or the transferees of such properties or assets assume the obligations set forth in this Section 5.045.10.
(ce) For six years after 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 Effective Timecertificate 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, the Surviving Corporation shall maintain in each case 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 as of such policy in effect on the date hereof; provided that the Surviving Corporation may substitute therefor policies of this Agreement, or under applicable Law. Except as otherwise set forth herein, these rights shall survive consummation of the Surviving Corporation or its subsidiaries containing Merger in accordance with their 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 ofbenefit, and will shall be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise. Each indemnified party is an intended third party beneficiaryIndemnified Party.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (KEMPER Corp), Agreement and Plan of Merger (Infinity Property & Casualty Corp)
Indemnification, Exculpation and Insurance. (a) The Buyer shall cause the Surviving Corporation Company, and the Surviving Company hereby agrees, that for six years after the Closing, the Surviving Company shall indemnify and hold harmless from liabilities for all Persons who at or prior to the Closing were directors, managers or officers of the Company or any of its Subsidiaries (each, an “Indemnified Person”) in respect of acts or omissions occurring at or prior to the Effective Time Closing, and 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 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 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 favorable to the beneficiaries of such provisions as those classes provisions that are set forth in the governing documents of persons currently entitled to indemnification from the Company and the Company Subsidiary (and any other subsidiary formed after its Subsidiaries in effect on the date hereof hereof, 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 the ordinary course rights thereunder of business or with any Indemnified Person, except to the consent of Parentextent that such modification is required by Applicable Law and (ii) all rights to indemnification as provided in their respective certificates of incorporation or 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 between the Company or any of its Subsidiaries, on the one hand, and any Indemnified Person, 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) At or prior to the Closing, the Company shall purchase or cause to be purchased, at the sole cost and expense of Buyer and in reasonable consultation with Buyer, non-cancellable extensions of the Company Company’s and its Subsidiaries’ existing directors’ and officers’ liability and fiduciary liability insurance policies in effect as of the date hereof. The Surviving Corporation hereof (such extensions collectively, the “D&O Tail Policy” and such existing insurance policies the “Existing Insurance”), which shall advance expenses to any such person promptly upon receipt (i) cover the Company, its Subsidiaries and the Indemnified Persons, (ii) be for a claims reporting or discovery period 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, at least six years from and after the Effective TimeClosing with respect to any claim related to any period or time at or prior to the Closing, directors (iii) be from the Company’s current insurance carrier(s) with respect to such coverage or an insurance carrier(s) with the same or better AM Best financial strength rating and officers (iii) have terms, conditions, retentions and limits of liability that are no less 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 who become directors or officers of shall be obligated to obtain a D&O Tail Policy with the greatest coverage available, with respect to matters occurring prior to the Closing, for a cost not exceeding such amount.
(d) If Buyer, the Surviving Corporation Company or any of its subsidiaries will be entitled to 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.
(b) In the event that the Surviving Corporation or any of its successors or assigns Subsidiaries (i) consolidates with or merges into any other person Person and is not 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 substantially all of its properties and assets to any personPerson, then, and in each such case, Buyer shall ensure that proper provision will shall be made so that such continuing or surviving entity or transferee of such assets, as the successors and assigns of the Surviving Corporation assume case may be, assumes the obligations set forth in this Section 5.045.07.
(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.
(de) 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 5.04 are 5.07 (i) intended whether or not he or she is a party 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 beneficiarythis Agreement).
Appears in 2 contracts
Samples: Merger Agreement (MasterBrand, Inc.), Merger Agreement (MasterBrand, Inc.)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Parent and hold harmless Merger Sub agree that, except as may be limited by applicable law, all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes existing as of persons currently entitled to indemnification from the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in favor of the ordinary course current or former directors or officers of business or with the consent of ParentCompany and its Subsidiaries (each, an "Indemnified Person") as provided in their respective certificates of incorporation or and by-laws (or comparable similar organizational documents) and as provided under applicable state law shall survive the Merger, shall be retained by such persons after the Merger, and shall continue in full force and effect after the Merger is consummated in accordance with their terms, and the obligation to provide such rights shall be assumed by the Surviving Corporation in the Merger shall assumeat the Effective Time, without further action, as of the Effective Time any indemnification agreements of the Company in effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will shall be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.045.8.
(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 '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 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 amounts no less favorable in any material respect to such directors and officers than those of such policy as in effect on the date hereofof 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 may substitute therefor policies of 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 or its subsidiaries containing terms with respect to coverage deposit $700,000 in an interest-bearing escrow account mutually satisfactory to Parent and amount no less favorable 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 directors or officersaccount 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 5.04 5.8 are (i) intended to be for the benefit of, and will be enforceable by, each indemnified partyIndemnified Person, 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 beneficiaryrepresentatives.
Appears in 2 contracts
Samples: Merger Agreement (Vestcom International Inc), Merger Agreement (Vector Merger Corp)
Indemnification, Exculpation and Insurance. (a) The Parent shall cause the Surviving Corporation to, and the Surviving Corporation shall indemnify assume the obligations with respect to all rights to indemnification and hold harmless exculpation from liabilities liabilities, including advancement of expenses, for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the current or former directors, officers, employees or agents of the Company or any of its Subsidiaries as provided in the Company’s or any of its Subsidiaries’ certificate of incorporation, the Bylaws or any indemnification Contract between such directors, officers, employees or agents and the Company Subsidiary or any of its Subsidiaries (and any other subsidiary formed after in each case, as in effect on the date hereof in the ordinary course of business or with the consent of Parent) as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and the Surviving Corporation in the Merger shall assumethis Agreement), without further action, as of the Effective Time any indemnification agreements of and such obligations shall survive the Company Merger and shall continue in full force and effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 for a period of not less than six years from the Surviving Corporation or any of its subsidiariesEffective Time.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and other assets to any person, then, and in each such case, Parent shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation shall expressly assume the obligations set forth in this Section 5.046.04 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) For Commencing at or prior to the Effective Time and until six years after the Effective Time, the Surviving Corporation Parent shall maintain in effect (directly or indirectly through the Company’s current existing insurance programs) in effect directors’ and officers’ liability insurance covering in respect of acts or omissions occurring at or prior to the Effective Time with respect to those persons who are Time, covering each person currently covered by the Company’s 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 amount no less favorable than those of such policy in effect on amounts comparable to the date hereofinsurance 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 or shall first use its subsidiaries containing terms with respect 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 no less favorable 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 directors maximum amount; and provided, further that Parent shall not acquire the insurance required by this Section 6.04(c) at or officersprior 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 are 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 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 Contract or otherwise. Each It is expressly agreed that the indemnified party is an intended parties shall be third party beneficiarybeneficiaries of this Section 6.04.
Appears in 2 contracts
Samples: Merger Agreement (Microsoft Corp), Merger Agreement (Greenfield Online Inc)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify and hold harmless 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 the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) as provided in their respective certificates of incorporation or 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 in effect as of the date hereof. The Surviving Corporation shall 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 From and after the Effective Time, directors each of Parent, Merger Sub, Merger Sub I, the Surviving Corporation and officers the Ultimate Surviving Entity agrees that it will indemnify and hold harmless, to the fullest extent permitted under applicable Laws, each present and former director and officer of the Company who become directors and its Subsidiaries (the “Indemnified Parties”) against any costs or officers expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or related to such Indemnified Parties’ service as a director, officer, employee or agent of the Company or its Subsidiaries or services performed by such Indemnified Parties at the request of the Company or its Subsidiaries at or prior to the Second Effective 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 Laws.
(b) The rights of the Indemnified Parties under this Section 5.9 shall be in addition to any of its subsidiaries will be entitled to indemnification rights such Indemnified Parties may have under the Surviving Corporation’s Company Charter or any of its subsidiaries’ the Company Bylaws and the certificate of incorporation and by-laws (or comparable organizational documents)) of each of its Subsidiaries, or under any applicable Contracts or Laws. Parent, Merger Sub and Merger Sub I agree that all rights to indemnification, advancement of expenses and exculpation of liabilities existing in favor of the Indemnified Parties as in effect on the same may date of this Agreement for acts or omissions occurring prior to the Second Effective Time shall be amended from time to time assumed and performed by the Ultimate Surviving Entity and shall continue in full force and effect in accordance with their terms.
(c) For a period of six (6) years after the Effective Time, Parent shall cause to be maintained 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 (a correct and 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 applicable lawamount, and are no less favorable in any material respect to all other indemnity rights and protections as are afforded to other such directors and officers than the Company’s existing policies as of the Surviving Corporation date hereof or any (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 subsidiarieselection, obtain prior to the Effective Time a “tail” policy with respect to such directors’ and officers’ liability insurance 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 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 to be maintained in effect the Company’s current directors’ and officers’ liability insurance; provided, further, that the Company may not expend more than the Maximum Premium for such “tail” policy.
(bd) In the event that Parent, the Ultimate Surviving Corporation Entity or any of its successors or assigns shall (i) consolidates consolidate with or merges merge into any other person Person and is shall 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 transfer all or substantially all of its properties and assets to any personPerson, then, and in each such case, Parent shall cause proper provision will to be made so that the successors successor and assigns assign of Parent or the Ultimate Surviving Corporation assume Entity assumes the obligations set forth in this Section 5.045.9.
(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.
(de) The provisions of this Section 5.04 5.9 shall survive consummation of the Merger and are (i) intended to be for the benefit of, and will be enforceable by, each indemnified partyIndemnified 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 beneficiarylegal representatives.
Appears in 2 contracts
Samples: Merger Agreement (Aecom Technology Corp), Agreement and Plan of Merger (Urs Corp /New/)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify All rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes existing in favor of persons currently entitled to indemnification from the current or former directors, officers or employees of the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) as provided in their respective certificates the Company's Certificate of incorporation Incorporation or by-laws (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 Merger shall assumeterms thereof, without further action, as of the Effective Time any indemnification agreements Time, and such rights will continue in full force and effort in accordance with their respective terms. Such rights, and the Surviving Corporation's and Parent's related obligations, shall apply in all respects to the current or former directors, 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 Bylaws as in effect as of on the date hereof. The Surviving Corporation shall advance expenses hereof or pursuant 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 indemnificationagreements, as the case may be. In addition, from and after the Effective Time, directors and officers of the Company who become or remain directors or officers of the Surviving Corporation or any of its subsidiaries will Parent shall be entitled to 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 (including those provided by directors' and officers' liability insurance) as are afforded to other directors and officers of the Surviving Corporation or any of its subsidiaries.
(b) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into Parent. Notwithstanding any other person and is not 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 substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.04.
(c) For six years after the Effective Timehereof, 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 5.5 (i) are intended to be for the benefit of, and will 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. Each indemnified party is an intended third party beneficiary.
(b) Parent shall, and shall cause the Surviving Corporation or 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 director or officer of the Company Subsidiaries prior to the Effective Time.
Appears in 2 contracts
Samples: Merger Agreement (Cn Biosciences Inc), Merger Agreement (Em Industries Inc)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Provident agrees that all rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the Company current or former directors or officers of UNUM or Provident and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) their respective subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification agreements of UNUM or Provident, the existence of which does not constitute a breach of this Agreement, shall be assumed by the Surviving Corporation in the Merger shall assumeMerger, without further action, as of the Effective Time any indemnification agreements of and shall survive the Company Merger and shall continue in full force and effect as of the date hereof. The Surviving Corporation shall 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 indemnificationin accordance with their terms. In addition, from and after the Effective Time, directors and officers of the Company UNUM or Provident who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 subsidiariesCorporation.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.045.08.
(c) For six years after the Effective Time, the Surviving Corporation shall maintain in effect the Company’s 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 the Company’s 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 5.04 are 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. Each indemnified party is an intended third party beneficiary.
Appears in 2 contracts
Samples: Merger Agreement (Unum Corp), Merger Agreement (Provident Companies Inc /De/)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Cedar agrees that all rights to indemnification, advancement of expenses and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the Company current or former directors or officers of Pine and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) Pine Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of Pine or any of the Surviving Corporation Pine Subsidiaries, in each case as in effect on the date of this Agreement, shall be assumed by Cedar in the Merger shall assumeMerger, without further action, as of the Effective Time any indemnification agreements of and shall survive the Company Merger and shall continue in full force and effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 subsidiariesterms.
(b) In the event that the Surviving Corporation Cedar or any of its successors or assigns (i) consolidates with or merges into any other person Person and is not 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 substantially all of its properties and assets to any personPerson, then, and in each such case, Cedar shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation Cedar assume the obligations set forth in this Section 5.046.05.
(c) For six years after At or prior to the Effective Time, the Surviving Corporation Cedar 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 purchase a “tail” directors’ and officers’ liability insurance policy on terms 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 respect to such coverage for six years following the Effective Time of not less than the existing coverage and amount no have other terms not less favorable to the insured persons than those of the directors’ and officers’ liability insurance coverage currently maintained by Pine. Cedar shall maintain such policy in effect on full force and effect, and continue to honor 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 officersobligations thereunder.
(d) The provisions of this Section 5.04 are 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 (iiiii) 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 an intended third party beneficiary.
Appears in 2 contracts
Samples: Merger Agreement (Centurytel Inc), Merger Agreement (Embarq CORP)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall Until the sixth (6th) anniversary of the Closing Date, Buyer will cause the Acquired Companies to indemnify and hold harmless from liabilities for each individual who on or prior to the Closing Date was a director, manager or officer of an Acquired Company (each, an “Indemnitee”) in respect of acts or omissions occurring at on or prior to the Effective Time those classes of persons currently entitled Closing Date to indemnification from the Company and fullest extent permitted by applicable Laws or provided under the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and the Surviving Corporation in the Merger shall assume, without further action, as Governing Documents of the Effective Time any indemnification agreements of the Company Acquired Companies in effect as of the date hereof. The Surviving Corporation shall advance expenses ; provided that such indemnification will be subject 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 limitation imposed from time to time in accordance with their terms and under applicable lawLaws. Notwithstanding anything herein to the contrary, and if any Proceeding (whether or not arising before, on, or after the Closing Date) is brought against any Indemnitee on or prior to all other indemnity rights and protections as are afforded to other directors and officers the sixth (6th) anniversary of the Surviving Corporation or any Closing Date, the provisions of its subsidiariesthis Section 5.7 will continue in effect until the final resolution of such Proceeding.
(b) Until the sixth (6th) anniversary of the Closing Date, Buyer will cause to be maintained in effect provisions in the Governing Documents of the Acquired Companies (or in such documents of any successor to the business of the Acquired Companies) regarding exculpation and elimination of liability of and indemnification in favor of directors, managers and officers, and advancement of expenses that are no less advantageous to the intended beneficiaries than the corresponding provisions in existence as of the date hereof.
(c) In the event that the Surviving Corporation Buyer or any of its successors or assigns (i) consolidates any Acquired Company with or merges any Acquired Company into any other person Person and such Acquired Company is not the continuing or surviving corporation or entity of such consolidation or merger 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 substantially all of its any Acquired Company’s properties and assets to any personPerson, then, and then in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation such Acquired Company will assume all of the obligations thereof set forth in this Section 5.04.
(c) For six years after 5.7, except to the Effective Time, the Surviving Corporation shall maintain extent that such obligations continue 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 as a matter 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 officerslaw.
(d) Sellers shall keep in full force and effect insurance comparable in amount and scope to insurance now carried by the Sellers (to the extent related to the Business) and the Acquired Companies under the Insurance Policies until the sixth (6th) anniversary of the Closing Date.
(e) The provisions of this Section 5.04 5.7 are (i) intended to be for the benefit of, and will be enforceable by, each indemnified partysuch person, his or her heirs and his or her representatives 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 Contract or otherwise. Each indemnified party is an intended third party beneficiaryunder applicable Law.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The certificates of incorporation and bylaws (or comparable organizational documents) of the Surviving Corporation and the subsidiaries of the Company shall indemnify contain the provisions with respect to indemnification, exculpation from liability and hold harmless advancement of expenses set forth in such certificates of incorporation, bylaws and other organizational documents as in effect on the date hereof for the Company (in the case of the Surviving 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 for a period of six years from liabilities for acts or omissions occurring at the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time are among those classes of persons currently entitled to indemnification from the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and to cause the Surviving Corporation in the Merger shall to assume, without further action, as of the Effective Time any indemnification agreements of the Company in effect as of the date hereof. The Surviving Corporation Parent shall 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 guarantee the Effective Time, directors and officers of the Company who become directors or officers obligations of the Surviving Corporation or any and the subsidiaries of its subsidiaries will be entitled the Company with respect to the indemnification under provisions contained in the Surviving Corporation’s or any of its subsidiaries’ certificate of incorporation and by-laws (incorporation, bylaws or comparable other 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 documents of the Surviving Corporation or any and the subsidiaries of its subsidiariesthe Company.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.045.05.
(c) For six years after the Effective Time, the Surviving Corporation 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 '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 provided, however, that the Surviving Corporation may substitute therefor policies 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 Surviving Corporation or its subsidiaries containing terms with respect to coverage and aggregate premiums paid by the Company in fiscal 2004 for such purpose (which amount no less favorable to such directors or officersis set forth in Section 5.05 of the Company Disclosure Schedule).
(d) The provisions of this Section 5.04 are 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. Each indemnified party is an intended third party beneficiary.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall Parent agrees to indemnify and hold harmless 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 the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its subsidiaries as provided in their respective certificates of incorporation or 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 in effect as of the date hereof). The Surviving Corporation shall Parent also agrees 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, directors and officers of the Company who become directors or officers of the Surviving Corporation Parent or any of its subsidiaries will be entitled to indemnification under the Surviving Corporation’s Parent's or any of its subsidiaries’ ' certificate of incorporation and by-laws (or comparable organizational documents)laws, 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 Parent or any of its subsidiaries.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.045.03.
(c) For six years after the Effective Time, the Surviving Corporation Parent shall maintain in effect the Company’s 's current directors’ ' and officers’ ' liability insurance covering acts or 42 50 omissions occurring prior to the Effective Time with respect to those persons who are currently covered by the Company’s '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 Parent may substitute therefor policies of the Surviving Corporation 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 5.04 are 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. Each indemnified party is an intended third party beneficiary.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation Daimler-Benz and Newco AG shall indemnify maintain in effect in accordance with their terms all rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the Company and the Company Subsidiary (and current or former directors or officers of Chrysler or Daimler-Benz or any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) their respective Subsidiaries as provided in their respective certificates of incorporation or 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 in effect as of the date hereof. The Surviving Corporation shall 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 indemnificationChrysler or Daimler-Benz. In addition, from and after the Effective Time, directors and officers of the Company Chrysler who become directors or officers of the Surviving Corporation Newco AG or any of its subsidiaries will Daimler-Benz shall be entitled to 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 Newco AG or Daimler-Benz, as the Surviving Corporation case may be, and Management Board members (Mitglieder des Vorstands) and officers of Daimler-Benz who become directors or any officers of its subsidiariesNewco AG or Chrysler shall be entitled to the same indemnity rights and protections as are afforded to other directors and officers of Newco AG or Chrysler, as the case may be.
(b) In the event that the Surviving Corporation If Newco AG, Daimler-Benz or any of its 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of Newco AG or Daimler-Benz, as the Surviving Corporation case may be, assume the obligations set forth in this Section 5.049.8.
(c) For six years 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 Surviving Corporation shall maintain "Indemnified Parties"), against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in effect the Company’s current directors’ and officers’ liability insurance covering acts connection with any claim, action, suit, proceeding or omissions investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time with respect Time, to those persons who are currently covered by the Company’s directors’ fullest extent that Chrysler or such Subsidiary would have been permitted under applicable law and officers’ liability insurance policy on terms with respect to the Certificate of Incorporation or Bylaws of Chrysler or such coverage and amount no less favorable than those of such policy Subsidiary in effect on the date hereof; 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 the Surviving Corporation may substitute therefor policies of the Surviving Corporation or its subsidiaries containing terms with respect such person is not entitled to coverage and amount no less favorable to such directors or officersindemnification).
(d) The provisions of this Section 5.04 9.8 are (i) intended to be for the benefit of, and will may be enforceable enforced 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 an intended third party beneficiary.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The From and after the Effective Time, Parent will, or will cause the Surviving Corporation shall to, indemnify each individual who at the Effective Time is, or any time prior to the Effective Time was, a director or officer of the Company or any of its Subsidiaries in respect of indemnification and hold harmless exculpation from liabilities for acts or omissions by them in their capacity as such occurring at or prior to the Effective Time those classes (and rights for advancement of persons currently entitled expenses) to indemnification from the extent provided in (i) the Company and the Certificate of Incorporation or Company Subsidiary (and any other subsidiary formed after Bylaws as in effect on the date hereof and (ii) any indemnification or other agreements of the Company as in effect on the ordinary course of business or with date hereof, which shall survive the consent of Parent) as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and the Surviving Corporation in the Merger shall assumeMerger, without further action, as of the Effective Time any indemnification agreements of the Company and shall continue in full force and effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 lawterms; provided, and to all other indemnity rights and protections as are afforded to other directors and officers of however that the Surviving Corporation shall not be required to indemnify any such person for fraud, criminal conduct or any responsibility for breach of its subsidiariesthis Agreement.
(b) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and is not 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 substantially all of its properties and assets to any personPerson, then, and in each such case, the Surviving Corporation shall cause proper provision will to be made so that the its successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.045.12.
(c) For six years from and after the Effective Time, Parent shall maintain, or cause the Surviving Corporation shall maintain to 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 covering each Person currently covered by the Company’s directors’ ' and officers’ ' liability insurance policy as of the date hereof (the "Current D&O Policy") maintained by the Company and its Subsidiaries on terms with respect to such coverage and amount amounts no less favorable than those of such policy in effect on the date hereofhereof or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided provided, however, that Parent and the Surviving Corporation shall not be required to pay an annual premium for such insurance in excess of $350,000 (which amount represents 200% of the annual premium currently paid by the Company for the Current D&O Policy); provided, further that Parent may substitute therefor policies of Parent of at least the Surviving Corporation or its subsidiaries containing terms with respect to same coverage and amount and such other terms which are, in the aggregate, no less favorable to such directors or and officers.
(d) The provisions of this Section 5.04 5.12 are (i) intended to be for the benefit of, and will be enforceable by, each indemnified partyparty currently covered by such insurance or such indemnification agreements or provisions, 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 Person may have by contract or otherwise. Each indemnified party is an intended third party beneficiary.
Appears in 1 contract
Samples: Merger Agreement (Bha Group Inc)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall Travelers agrees to indemnify and hold harmless 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 Citicorp and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and to assume as the Surviving Corporation in the Merger shall assumeMerger, without further action, as of the Effective Time any indemnification agreements of the Company Citicorp in effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company Citicorp who become directors or officers of the Surviving Corporation or any of its subsidiaries Travelers will be entitled to indemnification under the Surviving Corporation’s or any Travelers' Restated Certificate of its subsidiaries’ certificate of incorporation Incorporation and by-laws (or comparable organizational documents)By- laws, 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 subsidiariesTravelers.
(b) In the event that the Surviving Corporation Travelers 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation Travelers assume the obligations set forth in this Section 5.045.07.
(c) For six years after the Effective Time, the Surviving Corporation Travelers shall maintain in effect the Company’s Citicorp'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 Citicorp'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 Travelers may substitute therefor policies of the Surviving Corporation Travelers 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 Travelers be required to pay aggregate premiums for insurance under this Section 5.07(c) in excess of 200% of the aggregate premiums paid by Citicorp in 1997 for such purpose.
(d) The provisions of this Section 5.04 are 5.07 (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 an intended third party beneficiary.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Parent and hold harmless Merger Sub agree that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the current or former directors or officers of the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its Subsidiaries as provided in their respective certificates of incorporation or by-laws bylaws (or comparable organizational documents) and any indemnification or other agreements of the Company as in effect on the date of this Agreement (in each case, to the extent copies of which have been made available in the Data Room to Parent prior to the date hereof) shall be assumed by the Surviving Corporation in the Merger shall assumeMerger, without further action, as of at the Effective Time any indemnification agreements Time, and shall survive the Merger and shall continue in full force and effect in accordance with their terms without amendment, repeal or other modification for a period of six (6) years following the Company in effect as of the date hereof. The Surviving Corporation Closing Date; provided that such obligations shall advance expenses be subject to any such person promptly upon receipt of an undertaking limitation imposed from such person that such expenses shall be repaid should it be ultimately determined that such person is not entitled time to indemnificationtime under applicable Law. In addition, from From and after the Effective Time, directors Parent and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will shall be entitled jointly and severally liable to pay and perform in a timely manner such 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 subsidiariesobligations.
(b) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and is not 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 substantially all of 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 will to be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.045.5.
(c) For six years after From the Closing through the sixth anniversary of the Effective TimeTime (such period, the “Tail Period”), Parent shall, or shall cause the Surviving Corporation shall to, 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 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 amount amounts no less favorable in the aggregate than those of such policy in effect on the date hereofof this Agreement (copies of which have been made available in the Date Room to Parent); provided further that Parent or the Surviving Corporation may (i) substitute therefor policies of any reputable insurance company or (ii) satisfy its obligation under this Section 5.5(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 in the aggregate to such directors and officers than the insurance coverage otherwise required under this Section 5.5(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 (which the Company represents is $103,500); and provided further that if the annual premium of such insurance coverage exceeds such amount, Parent or its subsidiaries containing terms the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available, with respect to coverage and amount no less favorable matters occurring prior to the Effective Time, for a cost not exceeding such directors or officersamount.
(d) The provisions of this Section 5.04 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 for, any other rights to indemnification or contribution that any such person Person may have by contract Contract or otherwise. Each indemnified party is an intended third party beneficiary.
Appears in 1 contract
Samples: Merger Agreement (Novamed Inc)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Razorfish agrees that all rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the Company current or former directors or officers of i-Cube and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification agreements of i-Cube, the existence of which does not constitute a breach of this Agreement, shall be assumed by the Surviving Corporation in the Merger shall assumeMerger, without further action, as of the Effective Time any indemnification agreements of and shall survive the Company Merger and shall continue in full force and effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 lawterms, and to all other indemnity rights and protections as are afforded to other directors and officers of Razorfish shall cause the Surviving Corporation or any of its subsidiariesto honor all such rights.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, Razorfish shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.045.09.
(c) For six years after the Effective Time, the Surviving Corporation Razorfish shall maintain in effect the Company’s 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 the Company’s 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 the Surviving Corporation Razorfish may substitute therefor policies of the Surviving Corporation Razorfish or its subsidiaries containing terms with respect to coverage subsidiaries; provided further, that if the existing or substituted directors' and amount no less favorable to officers' liability insurance expires, is terminated or canceled during such directors or six-year period, Razorfish will obtain as much directors' and officers.
(d) The provisions of this Section 5.04 are (i) intended to ' liability insurance as can be obtained 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 remainder of such period for a premium not in substitution 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, 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 1 contract
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Purchaser agrees that all rights to indemnification, advancement of expenses and hold harmless from liabilities for acts exculpation by the Company now existing in favor of each Person who is now, or omissions occurring has been at or any time prior to the Effective Time those classes date hereof or who becomes prior to the Closing Date, an officer or director of persons currently entitled to indemnification from the Company and (collectively, the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) “Covered Persons”), as provided in their respective certificates the Governing Documents of incorporation or by-laws (or comparable organizational documents) and the Surviving Corporation such entity, in the Merger shall assume, without further action, each case as of the Effective Time any indemnification agreements of the Company in effect as of on the date hereof. The Surviving Corporation of this Agreement, shall advance expenses to any such person promptly upon receipt of an undertaking from such person that such expenses survive the Closing Date and shall be repaid should it be ultimately determined that such person is not entitled to indemnification. In addition, from continue in full force and after the Effective Time, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 effect in accordance with their respective terms and applicable law, and for a period of six years following the Closing Date; provided that no such indemnification shall apply to all other indemnity rights and protections as are afforded to other directors and officers any claim against any of the Surviving Corporation foregoing arising out of a breach of this Agreement, any ancillary agreement or any of its subsidiariesthe transactions contemplated hereby or thereby.
(b) In The Company shall, prior to the event that Closing, purchase for 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns benefit of the Surviving Corporation assume Covered Persons, a six-year extended reporting period endorsement under the obligations set forth in this Section 5.04.
(c) For six years after the Effective Time, the Surviving Corporation shall maintain in effect the Company’s current existing directors’ and officers’ liability insurance covering acts or omissions occurring prior to policies of such Company (the Effective Time with respect to those persons who are currently covered by “Tail Insurance Policy”), providing that such endorsement shall extend the Company’s directors’ and officers’ liability insurance policy on terms with respect to such coverage and amount no less favorable than those in force as of such policy in effect on the date hereof; provided that hereof for a period of six years from the Surviving Corporation may substitute therefor policies of Closing for any claims arising from events which occurred prior to 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 Closing. Purchaser shall (i) intended upon the request of the Seller Representative, cooperate reasonably with the Seller Representative to be make any claim for coverage under any such policy and take any action reasonably requested by the benefit ofSeller Representative to obtain reimbursement for covered Losses under any such policy or to otherwise enforce any such policy or any provision thereof, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) in addition topromptly inform the Seller Representative of any communication received by Purchaser or, after the Closing, received by the Company, from, or given by Purchaser or, after the Closing, by the Company, to any Person issuing any such insurance policy, and not in substitution for(iii) upon Seller Representative’s request, any other rights promptly furnish to indemnification or contribution that any Seller Representative certificates of insurance evidencing such person may have by contract or otherwise. Each indemnified party is an intended third party beneficiarypolicy.
Appears in 1 contract
Samples: Merger Agreement (Genasys Inc.)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation From and after the Initial Holdco Merger Effective Time, Marriott shall indemnify and hold harmless from liabilities for acts each individual who is as of the date of this Agreement, or omissions who becomes prior to the Initial Holdco Merger Effective Time, a director or officer of Starwood or any of its subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Initial Holdco Merger Effective Time, serving at the request of Starwood, as applicable, 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, incurred in connection with any claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including with respect to matters existing or occurring at or prior to the Initial Holdco Merger Effective Time those classes of persons currently entitled to indemnification from the Company (including this Agreement and the Company Subsidiary (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 other subsidiary formed 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 date hereof in Initial Holdco Merger Effective Time, to the ordinary course of business or with the consent of Parent) same extent as provided in their respective certificates of incorporation or 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 in effect 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. The Surviving Corporation shall advance expenses to In the event of any such claim, action, suit or proceeding, (i) each Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit or proceeding from Marriott to the same extent as such Indemnified Parties are entitled to advance of expenses as of the date of this Agreement by Starwood pursuant to the Starwood Charter, the Starwood By-laws or the governing or organizational documents of any subsidiary of Starwood, as applicable, and any indemnification agreements with directors and officers of Starwood in existence as of the date of this Agreement and listed in Section 5.4(a) of the Starwood Disclosure Letter; provided that any person promptly upon receipt to whom expenses are advanced provides an undertaking, if and only to the extent required by Applicable Law, the Starwood Charter or the Starwood By‑laws or the governing or organizational documents of an undertaking from any Starwood subsidiary, as applicable, and any indemnification agreements with directors and officers of Starwood in existence as of the date of this Agreement and listed in Section 5.4(a) of the Starwood Disclosure Letter, to repay such person that such expenses shall be repaid should advances if it be is ultimately determined that such person is not entitled to indemnificationindemnification and (ii) Marriott shall, and shall cause its subsidiaries to, cooperate in the defense of any such matter. In additionthe event that Marriott, from and after the Effective Time, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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.
(b) In the event that the Surviving Corporation or any of its 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, 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 will to be made so that the successors and assigns of Marriott or the Surviving Corporation Corporation, as applicable, assume the obligations set forth in this Section 5.045.4.
(cb) For a period of six years from and after the Effective TimeClosing Date, the Surviving Corporation Marriott shall maintain either cause to be maintained in effect the Company’s current policies of directors’ and officers’ liability insurance covering acts and fiduciary liability insurance maintained by Starwood or omissions occurring prior any of its subsidiaries or provide substitute polices for not less than the existing coverage and have other terms not less favorable to the Effective Time insured persons with respect to those persons who are currently covered by claims arising from facts or events that occurred on or before the Company’s directors’ and officers’ liability insurance policy on terms Initial Holdco Merger Effective Time, except that in no event shall Marriott be required to pay with respect to such coverage insurance policies (or substitute insurance policies) of Starwood in respect of any one policy year more than 300% of the annual premium payable by Starwood for such insurance for the year ending December 31, 2015 (the “Annual D&O Cap”), and amount no less favorable than those of if Marriott is unable to obtain the insurance required by this Section 5.4 for any year within such policy in effect on six-year period, it shall obtain as much comparable insurance as possible for such year for an annual premium equal to the date hereofAnnual D&O Cap; provided that the Surviving Corporation may substitute therefor policies in lieu of the Surviving Corporation foregoing, Starwood may obtain at or its subsidiaries containing terms with respect prior to the Initial Holdco Merger Effective Time a six-year “tail” policy under Starwood’s existing directors and officers insurance policy providing equivalent coverage to that described in the preceding sentence if and to the extent that the same may be obtained for an amount no less favorable to that is not in excess of the maximum aggregate amount otherwise payable for such directors or officerssix-year period under this Section 5.4(b).
(dc) The provisions of this Section 5.04 are 5.4 (i) shall survive consummation of the Combination Transactions, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified partyor insured party (including the Indemnified Parties), his or her heirs and his or her representatives representatives, and (iiiii) 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 an intended third party beneficiary.
Appears in 1 contract
Samples: Merger Agreement (Starwood Hotel & Resorts Worldwide, Inc)
Indemnification, Exculpation and Insurance. (a) The Parent shall cause the Surviving Corporation shall indemnify or its applicable Subsidiary to assume and hold harmless honor the obligations with respect to 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 those classes now existing in favor of persons currently entitled to indemnification from the current or former directors or officers of the Company and the Company Subsidiary its Subsidiaries (other than VMware and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parentits Subsidiaries) as provided in their respective certificates the Company Articles, the Company Bylaws, the organizational documents of incorporation the Company’s Subsidiaries (other than VMware’s Subsidiaries) or by-laws (any indemnification Contract between such directors or comparable organizational documents) officers and the Surviving Corporation Company or any of its Subsidiaries (other than VMware and its Subsidiaries) (in each case, as in effect on the Merger shall assumedate hereof), without further action, as of the Effective Time any indemnification agreements of and such obligations shall survive the Company Merger and shall continue in full force and effect in accordance with their terms as of the date hereof. The For a period of six years following the Closing Date, Parent shall cause the Surviving Corporation shall advance expenses and its Subsidiaries not to amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any individuals who at the Effective Time were current or former directors or officers of the Company or any of its Subsidiaries (other than VMware and its Subsidiaries).
(b) For a period of six years following the Closing Date, Parent shall cause the Surviving Corporation to, to the fullest extent permitted under applicable Law, indemnify and hold harmless (and advance funds in respect of each of the Indemnified Parties) each current and former director or officer of the Company or any of its Subsidiaries (other than VMware and its Subsidiaries) and each person promptly upon receipt who served, at the request of the Company or any of its Subsidiaries (other than VMware and its Subsidiaries), as a director, officer, member, trustee, or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (each, together with such person’s heirs, executors or administrators, an “Indemnified Party”), to the same extent any such Indemnified Party would have been entitled to be indemnified and held harmless (and been entitled to advancement of funds) prior to the date of this Agreement under the Company Articles or Company Bylaws or the organizational documents of the Company’s Subsidiaries (other than VMware’s Subsidiaries), against any costs or expenses (including advancing reasonable attorneys’ fees and expenses in advance of the final disposition of any Action to each Indemnified Party to the fullest extent permitted by Law), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement (collectively, “Losses”) in connection with any actual or threatened Action arising out of, relating to or in connection with any action or omission occurring or alleged to have occurred whether before or after the Effective Time in connection with such Indemnified Party’s service as a director or officer of the Company or any of its Subsidiaries (other than VMware and its Subsidiaries) (including acts or omissions in connection with such Indemnified Party’s service as an officer, director, member, trustee or other fiduciary in any other entity if such services were at the request or for the benefit of the Company), including the Merger and the other transactions contemplated by this Agreement; provided, that any person to whom any funds are advanced pursuant to the foregoing must, if required by Law, provide an undertaking from to repay such person that such expenses shall be repaid should advances if it be is ultimately determined that such person is not entitled to indemnification. In addition, from and after the Effective Time, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.04.
(c) For six years after the Effective Time, Parent shall cause the Surviving Corporation shall to maintain in effect the Company’s and its Subsidiaries’ current directors’ and officers’ liability insurance covering acts and fiduciary liability insurance (or omissions occurring prior such other insurance that is no less favorable to the Effective Time with respect to those persons who are currently covered by current beneficiaries thereof than the Company’s and its Subsidiaries’ current directors’ and officers’ liability insurance policy and fiduciary 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 or its Subsidiaries’ directors’ and officers’ liability insurance and fiduciary liability insurance policies (complete and accurate copies of which have been heretofore delivered to Parent), on terms with respect to such coverage and amount amounts no less favorable than those of such policy policies in effect on the date hereof; provided, however, (i) the Company may substitute therefor a single premium tail policy with respect to such directors’ and officers’ liability insurance and fiduciary liability insurance 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 and its Subsidiaries; or (ii) if the Company does not substitute as provided that the Surviving Corporation in clause (i) above, then Parent may substitute therefor policies of Parent, from an insurance carrier with the Surviving Corporation same or better credit rating as the Company’s and its subsidiaries Subsidiaries’ current insurance carrier, containing terms with respect to coverage (including as coverage relates to deductibles and amount exclusions) and amounts no less favorable to such directors and officers; provided, further, that in connection with this Section 5.06(c), neither the Company nor Parent shall pay a one-time premium (in connection with a single premium tail policy described above) in excess of 300% of the amount set forth in Section 5.06(c)(i) of the Company Disclosure Letter or officersbe obligated to pay annual premiums (in connection with any other directors and officers insurance policy or fiduciary liability insurance policy described above) in excess of the annual premiums set forth in Section 5.06(c)(ii) of the Company Disclosure Letter. It is understood and agreed that if such coverage cannot be obtained for such amount or less, then the Surviving Corporation shall obtain the maximum amount of coverage as may be obtained for such amount.
(d) To the fullest extent permitted under applicable Law, from and after the Effective Time, Parent shall cause the Surviving Corporation to pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.06 if and to the extent that such Indemnified Party is determined to be entitled to receive such indemnification.
(e) The provisions of this Section 5.04 are 5.06 (i) shall survive the consummation of the Merger and 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 indemnitee referred to above 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 Contract or otherwise. Each indemnified party is an intended third party beneficiary.
(f) In the event Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its properties, rights and assets to any person, then, in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 5.06.
Appears in 1 contract
Samples: Merger Agreement (Emc Corp)
Indemnification, Exculpation and Insurance. (a) The Parent shall cause the Surviving Corporation shall indemnify to assume the obligations with respect to all rights to indemnification and hold harmless exculpation from liabilities 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 those classes now existing in favor of persons currently entitled to indemnification from the current or former directors or officers of the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its Subsidiaries as provided in their respective certificates the Company Articles, the Company Bylaws, the organization documents of incorporation any Subsidiary or by-laws any written indemnification Contract (true and correct copies of which previously have been provided to Parent) between such directors or comparable organizational documents) officers and the Surviving Corporation Company (in each case, as in effect on the Merger shall assumedate hereof), without further action, as of the Effective Time any indemnification agreements of and such obligations shall survive the Company Merger and shall continue in full force and effect as in accordance with their terms. From the Effective Time through the sixth anniversary of the date hereof. The on which the Effective Time occurs, the certificate of incorporation and bylaws of the Surviving Corporation shall advance expenses contain, and Parent shall cause the certificate of incorporation and bylaws of the Surviving Corporation 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 so contain, provisions no less favorable with respect to indemnification. In addition, from advancement of expenses and after the Effective Time, exculpation of present and former directors and officers of the Company who become directors and its Subsidiaries for acts or officers omissions occurring at or prior to the Effective Time than are presently set forth in the Company Articles and Company Bylaws, and such provisions shall not be amended, repealed, or otherwise modified in any manner that could adversely affect the rights thereunder of any person benefited by such provisions. Parent hereby unconditionally guarantees the obligations of the Surviving Corporation or any of its subsidiaries will be entitled to 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 subsidiariesthis Section 6.07(a) .
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and other assets to any person, then, and in each such case, Parent shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation shall expressly assume the obligations set forth in this Section 5.046.05.
(c) For six years after the Effective Time, Parent shall cause the Surviving Corporation shall to maintain (directly or indirectly through the Company’s existing insurance programs) in effect the Company’s current directors’ and officers’ liability insurance covering in respect of acts or omissions occurring at or prior to the Effective Time with respect to those persons who are 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 amount amounts no less favorable than those of such policy in effect on the date hereof; provided provided, however, that the Surviving Corporation Parent may (i) substitute therefor policies of the Surviving Corporation or its subsidiaries Parent containing terms with respect to coverage (including as coverage relates to deductibles and amount exclusions) and amounts no less favorable to such directors and officers or officers(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 5.04 are 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 Contract or otherwise. Each indemnified party is an intended third party beneficiary.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The For six (6) years from and after the Closing, Parent shall cause the Surviving Corporation shall indemnify and its Subsidiaries to, indemnify, defend and hold harmless harmless, to the fullest extent permitted under applicable Law, the individuals who at or prior to the Closing were directors or officers of the Company or any of its Subsidiaries (collectively, the “Indemnitees”) with respect to all acts or omissions by them in their capacities as such or taken at the request of the Company or any of its Subsidiaries at any time at or prior to the Closing. Parent agrees that all rights of the Indemnitees to advancement of expenses, 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 the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) Closing as provided in their the Company Charter Documents or the respective certificates certificate of incorporation or by-laws bylaws (or comparable organizational documents) and the Surviving Corporation in the Merger shall assume, without further action, as of any of the Effective Time Company’s Subsidiaries as now in effect, and any indemnification agreements of the Company or any of its Subsidiaries shall survive the Closing and shall continue in full force and effect as in accordance with their terms for a period of six (6) years following the Closing. Such rights shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights of the date hereofIndemnitees, unless such amendment, repealing or modification is required by Law or approved by such Indemnitees. The In addition, Parent shall, or shall cause the Surviving Corporation shall advance and its Subsidiaries, as the case may be, to, advance, pay or reimburse any expenses of any Indemnitee under this Section 6.6 as incurred to any such the fullest extent permitted under applicable Law; provided, that the person promptly upon receipt of to whom expenses are advanced provides an undertaking from to repay such person that such expenses shall be repaid should advances if it be is ultimately determined that such person is not entitled to indemnification. In addition, from and after the Effective Time, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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.
(b) In For six (6) years from and after the event that Closing, Parent shall cause the Surviving Corporation certificate of incorporation and bylaws 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns comparable organizational documents of the Surviving Corporation assume and its Subsidiaries to contain provisions no less favorable to the obligations Indemnitees with respect to advancement of expenses, indemnification and exculpation from liabilities than are set forth as of the date of this Agreement in this Section 5.04the Company Charter Documents or the certificate of incorporation and bylaws or comparable organizational documents of each Subsidiary of the Surviving Corporation, which provisions in each case shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees.
(c) For six years The Surviving Corporation shall cooperate, and shall use reasonable best efforts cause their respective Affiliates to cooperate, in the defense of any action, cause of action, claim, cross-claim or third-party claim or Legal Proceeding of any kind that is subject to advancement of expenses, indemnification and exculpation from liabilities, 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) From and after the Effective Time, the Surviving Corporation shall, and shall cause its Subsidiaries to, provide or maintain in effect for six (6) years, through the Company’s current purchase of “run-off” coverage or otherwise, directors’ and officers’ and corporate liability insurance covering acts or omissions occurring prior to the Effective Time with respect to those persons individuals who are currently covered by the Company’s directors’ and officers’ and corporate liability insurance policy or policies provided for directors and officers of the Company and its Subsidiaries as of the date hereof (the “Existing Policy”) on terms with respect comparable in all respects to the 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 Existing Policy and deductibles no less favorable larger than those the Existing Policy; provided, however, that if such “run-off” or other coverage is not available at a cost not greater than three hundred percent (300%) of such policy in effect on the annual premiums paid as of the date hereof under the Existing Policies (the “Insurance Cap”) (which premiums are, as of the date hereof; provided that , set forth in Schedule 6.6(d)), then the Surviving Corporation may substitute therefor and its Subsidiaries shall be required to obtain as much coverage as is possible under substantially similar policies for such annual premiums as do not exceed the Insurance Cap. For the avoidance of doubt, any policies purchased pursuant to this Section 6.6(d) shall be paid for by Parent or the Surviving Corporation or its subsidiaries containing terms with respect to coverage and amount no less favorable to such directors or officersCorporation.
(de) The provisions of this Section 5.04 are 6.6: (i) are intended to be for the benefit of, and will shall be enforceable by, each indemnified partyIndemnitee, 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 Contract or otherwise. Each indemnified party .
(f) In the event that the Surviving Corporation or any of their respective successors or assigns (i) consolidates, restructures, recapitalizes, merges with or into any other Person or otherwise reorganizes and is an not the continuing or surviving corporation or entity of such consolidation, restructuring, recapitalization, merger or other restructuring; or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made by Parent and the Surviving Corporation so that the successors and assigns of the Surviving Corporation shall assume all of the obligations thereof set forth in this Section 6.6.
(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, any of its Subsidiaries or any of their respective directors or officers, it being understood and agreed that the indemnification provided for in this Section 6.6 is not prior to or in substitution for any such claims under such policies.
(h) Notwithstanding anything to the contrary in this Section 6.6, Parent agrees that any indemnification, advancement of expenses or insurance available to any Indemnitee who at or prior to the Closing was a director of the Company or any of its Subsidiaries by virtue of such Indemnitee’s service as a partner, member or employee of any investment fund or management entity affiliated with or managed by a Sponsor at or prior to the Closing (any such Indemnitee, a “Sponsor Director”) shall be secondary to the indemnification, advancement of expenses and insurance to be provided by Parent, the Surviving Corporation and its Subsidiaries pursuant to this Section 6.6 and that the Surviving Corporation and its Subsidiaries (i) shall be the primary indemnitors of first resort for Sponsor Directors pursuant to this Section 6.6, (ii) shall be fully responsible for the advancement of expenses, indemnification and exculpation from liabilities with respect to Sponsor Directors that are addressed by this Section 6.6 and (iii) shall not make any claim for contribution, subrogation or any other recovery of any kind in respect of any other indemnification or insurance available to any Sponsor Director with respect to any matter addressed by this Section 6.6.
(i) The obligations of 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 beneficiarybeneficiaries of this Section 6.6).
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Without limiting any additional rights that any current or former officer or director may have under the Company Charter or Company Bylaws 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, the Surviving Corporation shall indemnify and hold harmless each current (as of the Effective Time) and each former officer and director of the Company from liabilities for acts and against any and all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such person in connection with any Action, whether civil, criminal, administrative or omissions occurring investigative, arising out of or pertaining to the fact that the indemnified Person is or was an officer, director, employee or fiduciary of the Company or any of its Subsidiaries at or prior to the Effective Time those classes of persons currently entitled to indemnification from the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business Time, whether asserted or with the consent of Parent) as provided in their respective certificates of incorporation claimed prior to, at or 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 in effect as of the date hereof. The Surviving Corporation shall 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, to the fullest extent that the Company would be permitted under applicable Law and required or permitted under the Company Charter or Company Bylaws (or, as relevant, those of the applicable Subsidiary of the Company) as at the date of the Original Agreement. In the event of any such Action, each indemnified Person shall be entitled to advancement of expenses incurred in the defense of any Action from the Surviving Corporation to the fullest extent that the Company would be permitted under applicable Law and the Company Charter or Company Bylaws as at the date of the Original Agreement. Notwithstanding anything to the contrary herein (but subject to any superior rights contained in the Company Charter or Company Bylaws (or, as relevant, those of 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 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, if it is ultimately determined that the criteria for indemnification have not been satisfied in connection with any threatened, pending, or completed civil, criminal, administrative, arbitration or investigative proceeding to which such Person is, or is threatened to be, made a party by reason of the former or present official capacity of such Person. No such indemnified Person shall settle, compromise or consent to the entry of any judgment in any threatened or actual Action for which indemnification could be sought by such indemnified Person hereunder unless Parent consents in writing to such settlement, compromise or consent (which consent shall not be unreasonably withheld, conditioned or delayed). Surviving Corporation agrees to continue and not to repeal or modify, and agree to include, to the extent permitted by applicable Law, in the charter documents for the Surviving Corporation, exculpatory provisions currently existing in the Company Charter (or their substantial equivalent) eliminating personal liability for the Company’s directors to the extent permissible under the CGCL.
(b) For a period of six (6) years after the Effective Time, Parent shall cause to be maintained 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 policies (correct and complete copies of which have been heretofore made available to Parent) for acts or omissions occurring prior to the Effective Time; provided, that Parent 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 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 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 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 who become directors or officers of Disclosure Letter), it being understood that Parent shall nevertheless be obligated to provide such coverage as may be obtained for such 150% amount.
(c) In the event that Parent, the Surviving Corporation or any of its subsidiaries will be entitled to 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.
(b) In the event that the Surviving Corporation or any of its successors or assigns shall (i) consolidates consolidate with or merges merge into any other person Person and is shall 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 transfer all or substantially all of its properties and assets to any personPerson, then, and in each such case, Parent shall cause proper provision will to be made so that the successors successor and assigns assign of Parent or the Surviving Corporation assume assumes the obligations set forth in this Section 5.046.8.
(cd) For six years after It is the Effective Timeintent that, with respect to all advancement and indemnification obligations under this Section 6.8, the Surviving Corporation shall maintain in effect be the Company’s current directors’ and officers’ liability 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 covering acts maintained by a Stockholder at or omissions occurring prior to the Effective Time with respect 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 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 be indemnified, neither Parent nor the Surviving Corporation may substitute therefor policies shall have any right to seek contribution, indemnity or other reimbursement for any of the Surviving Corporation its obligations under this Section 6.8 from any such Stockholder or its subsidiaries containing terms with respect to coverage and amount no less favorable to such directors or officersinsurers.
(de) The provisions of this Section 5.04 6.8 shall survive consummation of the Merger and are (i) intended to be for the benefit of, and will be enforceable by, each indemnified partyPerson, his or her heirs and his or her representatives and (ii) in addition tolegal representatives, and not in substitution for, any other rights to indemnification or contribution that any each such person may have by contract or otherwise. Each indemnified party is Person shall be an intended third party beneficiarybeneficiary 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) The Each of Parent and the Surviving Corporation Entities shall, and Parent shall indemnify cause the Surviving Entities to, assume and hold harmless perform the obligations with respect to 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 those classes in favor of persons currently entitled to indemnification from the Company current or former directors, managers, members or officers of OUTD, IM and the Company Subsidiary (their respective Subsidiaries that are existing, and any other subsidiary formed after person who becomes a director or officer prior to the date hereof in the ordinary course of business or with the consent of ParentEffective 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, on the one hand, and OUTD, IM or their respective certificates of incorporation or by-laws Subsidiaries, as applicable, on the other hand (or comparable organizational documents) and in each case, as in effect on the Surviving Corporation in the Merger shall assumedate hereof), without further action, as of the Effective Time any indemnification agreements of and such obligations shall survive the Company Effective Time and shall continue in full force and effect as of the date hereofin accordance with their terms. The Surviving Corporation shall 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 For no less than six (6) years after the Effective Time, Parent shall cause the certificate of incorporation and bylaws (or similar organizational documents, as applicable) of the Surviving Entities and their Subsidiaries to contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of OUTD, IM and their respective Subsidiaries than are presently set forth in the Company who become directors OUTD Organizational Documents, IM Organizational Documents, OUTD Subsidiary Organizational Documents or officers of the Surviving Corporation or any of its subsidiaries will be entitled to indemnification under the Surviving Corporation’s or any of its subsidiaries’ certificate of incorporation and by-laws (or comparable organizational documents)IM Subsidiary 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 subsidiariesapplicable.
(b) In the event that the Surviving Corporation either Parent or any of its the Surviving Entities or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and is not 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 substantially all of its properties and other assets to any personPerson, then, and in each such case, Parent shall cause proper provision will to be made so that the successors and assigns of Parent or the applicable Surviving Corporation Corporation, as applicable, shall expressly assume the obligations set forth in this Section 5.046.12.
(c) For 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, the Surviving Corporation Parent shall maintain (directly or indirectly through OUTD’s or IM’s existing insurance programs, as applicable) in effect the CompanyOUTD’s and IM’s current directors’ and officers’ liability insurance covering acts with respect to matters existing or omissions occurring at or prior to the Effective Time (including with respect to those persons who are acts and omissions occurring in connection with this Agreement or the transactions or actions contemplated hereby), covering each Person currently covered by the CompanyOUTD’s and IM’s directors’ and officers’ liability insurance policy policy, as applicable, on terms with respect to such coverage and amount amounts no less favorable than those of such policy in effect on the date hereof; provided provided, however, that the Surviving Corporation Parent may substitute therefor policies of the Surviving Corporation Parent with another insurance company of comparable standing to OUTD’s or its subsidiaries IM’s current insurer, as applicable, and containing terms and conditions, including with respect to coverage (including as coverage relates to deductibles and amount 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 officersParent 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 5.04 are 6.12 (i) are intended to be for the benefit of, and will be enforceable from and after the Effective Time by, each indemnified partyIndemnified 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 Person may have by contract Contract or otherwise. Each indemnified party 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 an intended third party beneficiarya 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) The Without limiting any additional rights that any current or former officer or director may have under the Company Charter or Company Bylaws 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, the Surviving Corporation shall indemnify and hold harmless each current (as of the Effective Time) and each former officer and director of the Company from liabilities for acts and against any and all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such person in connection with any Action, whether civil, criminal, administrative or omissions occurring investigative, arising out of or pertaining to the fact that the indemnified Person is or was an officer, director, employee or fiduciary of the Company or any of its Subsidiaries at or prior to the Effective Time those classes of persons currently entitled to indemnification from the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business Time, whether asserted or with the consent of Parent) as provided in their respective certificates of incorporation claimed prior to, at or 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 in effect as of the date hereof. The Surviving Corporation shall 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, to the fullest extent that the Company would be permitted under applicable Law and required or permitted under the Company Charter or Company Bylaws (or, as relevant, those of the applicable Subsidiary of the Company) as at the date of the Original Agreement. In the event of any such Action, each indemnified Person shall be entitled to advancement of expenses incurred in the defense of any Action from the Surviving Corporation to the fullest extent that the Company would be permitted under applicable Law and the Company Charter or Company Bylaws as at the date of the Original Agreement. Notwithstanding anything to the contrary herein (but subject to any superior rights contained in the Company Charter or Company Bylaws (or, as relevant, those of 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 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, if it is ultimately determined that the criteria for indemnification have not been satisfied in connection with any threatened, pending, or completed civil, criminal, administrative, arbitration or investigative proceeding to which such Person is, or is threatened to be, made a party by reason of the former or present official capacity of such Person. No such indemnified Person shall settle, compromise or consent to the entry of any judgment in any threatened or actual Action for which indemnification could be sought by such indemnified Person hereunder unless Parent consents in writing to such settlement, compromise or consent (which consent shall not be unreasonably withheld, conditioned or delayed). Surviving Corporation agrees to continue and not to repeal or modify, and agree to include, to the extent permitted by applicable Law, in the charter documents for the Surviving Corporation, exculpatory provisions currently existing in the Company Charter (or their substantial equivalent) eliminating personal liability for the Company's directors to the extent permissible under the CGCL.
(b) For a period of six (6) years after the Effective Time, Parent shall cause to be maintained 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 policies (correct and complete copies of which have been heretofore made available to Parent) for acts or omissions occurring prior to the Effective Time; provided, that Parent 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 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 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 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 who become directors or officers of Disclosure Letter), it being understood that Parent shall nevertheless be obligated to provide such coverage as may be obtained for such 150% amount.
(c) In the event that Parent, the Surviving Corporation or any of its subsidiaries will be entitled to 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.
(b) In the event that the Surviving Corporation or any of its successors or assigns shall (i) consolidates consolidate with or merges merge into any other person Person and is shall 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 transfer all or substantially all of its properties and assets to any personPerson, then, and in each such case, Parent shall cause proper provision will to be made so that the successors successor and assigns assign of Parent or the Surviving Corporation assume assumes the obligations set forth in this Section 5.046.8.
(cd) For six years after It is the Effective Timeintent that, with respect to all advancement and indemnification obligations under this Section 6.8, the Surviving Corporation shall maintain in effect be the Company’s current directors’ and officers’ liability 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 covering acts maintained by a Stockholder at or omissions occurring prior to the Effective Time with respect 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 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 be indemnified, neither Parent nor the Surviving Corporation may substitute therefor policies shall have any right to seek contribution, indemnity or other reimbursement for any of the Surviving Corporation its obligations under this Section 6.8 from any such Stockholder or its subsidiaries containing terms with respect to coverage and amount no less favorable to such directors or officersinsurers.
(de) The provisions of this Section 5.04 6.8 shall survive consummation of the Merger and are (i) intended to be for the benefit of, and will be enforceable by, each indemnified partyPerson, his or her heirs and his or her representatives and (ii) in addition tolegal representatives, and not in substitution for, any other rights to indemnification or contribution that any each such person may have by contract or otherwise. Each indemnified party is Person shall be an intended third party beneficiarybeneficiary of the provisions of this Section 6.8.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify JPFI agrees to maintain in effect in accordance with their terms all rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes existing as of persons currently entitled to indemnification from the Company date of this Agreement in favor of the current or former directors or officers of RSI and the Company Subsidiary its subsidiaries (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parenttheir 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 their respective certificates of incorporation or 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 RSI or in effect as Section 7.13 of the date hereof. The Surviving Agreement and Plan of Merger dated February 2, 1996, among RSI, USF Acquisition Corporation shall 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 indemnificationand US Foodservice. In addition, from and after the Effective Time, directors and officers of the Company RSI who become directors or officers of the Surviving Corporation or any of its subsidiaries JPFI will be entitled to indemnification under the Surviving Corporation’s or any of its subsidiaries’ certificate of incorporation same indemnity rights and by-laws (or comparable organizational documents)protections, and directors' and officers' liability insurance, as the same may be amended are afforded 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 subsidiariesJPFI.
(b) In the event that the Surviving Corporation JPFI 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation JPFI assume the obligations set forth in this Section 5.045.7.
(c) For JPFI shall use its best efforts to provide to RSI's current directors and officers, 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 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 the Surviving Corporation may substitute therefor policies in no event shall JPFI be required to expend more than 200% of the Surviving Corporation or its subsidiaries containing terms with respect current amount expended by RSI to coverage and amount no less favorable to maintain such directors or officerscoverage.
(d) The provisions of this Section 5.04 are 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 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. Each indemnified party is an intended third party beneficiary.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify All rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes existing in favor of persons currently entitled the current or former directors, officers or employees of the Company (the "Indemnified Parties") to indemnification from the maximum extent as provided in the Company's articles of incorporation or bylaws (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), 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 the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) 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 Merger shall assumeterms thereof, to the extent permitted by applicable law, without further action, as of the Effective Time any indemnification agreements of the Company Time, and such rights will continue in full force and effect as of the date hereof. The Surviving Corporation shall 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 indemnificationin 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 the Surviving Corporation or any of its subsidiaries Parent will be entitled to 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 (including those provided by directors' and officers' liability insurance) as are afforded to other directors and officers of the Surviving Corporation or any of its subsidiaries.
(b) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into Parent. Notwithstanding any other person and is not 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 substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.04.
(c) For six years after the Effective Timehereof, 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 5.5 are (i) intended to be for the benefit of, and will be enforceable by, each indemnified partyIndemnified 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 .
(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 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 will cause the Surviving Corporation to, and the Surviving Corporation will, provide the maximum coverage that will then be available at an intended third party beneficiaryaggregate 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 any event be provided for a minimum of three years following the Effective Time.
Appears in 1 contract
Samples: Merger Agreement (Network Six Inc)
Indemnification, Exculpation and Insurance. (a) [Intentionally omitted.]
(b) The Surviving Corporation shall indemnify Purchaser Group agrees that all rights to indemnification, advancement of expenses and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes Closing now existing in favor of persons currently entitled to indemnification from the Company and current or former directors, officers or employees of the Company Subsidiary (and any other subsidiary formed after the date hereof Nutrition Entities, in the ordinary course of business or with the consent of Parent) their capacities as such, as provided in their respective certificates Organizational Documents and any indemnification or other similar Contracts of incorporation or by-laws any Nutrition Entity set forth in Section 4.08(b) of the Seller Disclosure Letter, in each case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms (or comparable organizational documents) it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable, with respect to directors and officers), and the Surviving Corporation Purchaser Group shall cause the Nutrition 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 Merger shall assume, without further action, as rights of the Effective Time any indemnification agreements of the Company in effect as of the date hereof. The Surviving Corporation shall advance expenses to Nutrition Indemnified Parties thereunder, unless 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 amendment, repeal or modification is not entitled to indemnificationrequired by applicable Law. In additionconnection with the foregoing, from and after the Effective TimeClosing, directors the Purchaser Group agrees that it shall indemnify and officers hold harmless each 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 Company Closing, a director or officer of any Nutrition Entity), in their capacity as such, who become directors or officers of the Surviving Corporation or any of its subsidiaries will be is entitled to indemnification and/or advancement of expenses under the Surviving Corporationrespective Organizational Documents of the Nutrition Entities 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 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, incurred in connection with any Claim, whether civil, criminal, administrative or investigative with respect to matters existing or occurring at or prior to the Closing (including this Agreement, the Transactions and the actions contemplated by 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 Closing, in each case in accordance with such Organizational Documents or such Contracts (including advancement of expenses as provided therein). Any determination required to be made with respect to whether any Nutrition Indemnified Party’s conduct complies with an applicable standard under applicable Law, the applicable Organizational Documents of any Nutrition Entity or any of its subsidiaries’ certificate of incorporation and by-laws (or comparable organizational documents)applicable indemnification agreements, as the same case may be, shall, if requested by such Nutrition Indemnified Party, be amended from time made by independent legal counsel to time in accordance with their terms be agreed upon by the Nutrition Indemnified Party 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 subsidiariesPurchaser acting reasonably.
(bc) In the event that the Surviving Corporation Purchaser Group or any Nutrition Entity or any of its their respective successors or assigns (i) consolidates with or merges into any other person Person and is not 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 substantially all of its properties and assets to any personPerson, then, and in each such case, the Purchaser Group or such Nutrition Entity, as applicable, shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation Purchaser Group or such Nutrition Entity, as applicable, assume the obligations covenants and agreements set forth in this Section 5.04.
(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 officers4.08.
(d) The provisions of this Section 5.04 are 4.08 (i) shall survive the Closing for a period of six (6) years, (ii) are intended to be for the benefit of, and will shall be enforceable by, each indemnified partyor insured party (including the Nutrition Indemnified Parties), his or her heirs and his or her representatives representatives, all of which, are express third-party beneficiaries of this Section 4.08 and (iiiii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person Person may have by contract or otherwise. Each indemnified party is an intended third party beneficiary.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify CT agrees that all rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the Company current or former directors or officers of BT and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) shall survive the Merger and shall continue in full force and effect in accordance with their terms. As soon as practicable following the Surviving Corporation date hereof, BT shall enter into indemnification agreements substantially in the Merger shall assumeform of Exhibit B hereto with each officer and director of BT, without further action, and as of the Effective Time any Time, CT shall assume the obligations under each such indemnification agreements of the Company in effect as of the date hereof. The Surviving Corporation shall 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 indemnificationagreement. In addition, from and after the Effective Time, directors and officers of the Company BT who become directors or officers of the Surviving Corporation or any of its subsidiaries CT will be entitled to 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 indemnity and applicable lawexculpation rights and protections, and to all other indemnity rights directors and protections officers liability insurance, as are afforded to other directors and officers of the Surviving Corporation or any of its subsidiariesCT.
(b) In the event that the Surviving Corporation CT 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation CT assume the obligations set forth in this Section 5.045.07.
(c) For six five years after the Effective Time, the Surviving Corporation CT shall maintain in effect the Company’s BT'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 BT'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 provided, that the Surviving Corporation may substitute therefor policies in satisfying its obligation under this Section 5.07(c) CT shall not be obligated to pay premiums in excess of 150% of the Surviving Corporation or amount per annum BT paid in its subsidiaries containing terms with respect last full fiscal year (which 150% premium BT represents to be $617,500), but shall in such case be obligated to provide such coverage and amount no less favorable to as may be obtained for such directors or officers150% premium.
(d) The provisions of this Section 5.04 are 5.07 (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 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. Each otherwise and (iii) may not be amended or repealed without the written consent of any affected indemnified party is an intended third party beneficiaryparty.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Without limiting any additional rights that any current or former officer or director may have under the Company Charter or Company Bylaws 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, the Surviving Corporation shall indemnify and hold harmless each current (as of the Effective Time) and each former officer and director of the Company from liabilities for acts and against any and all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by such person in connection with any Action, whether civil, criminal, administrative or omissions occurring investigative, arising out of or pertaining to the fact that the indemnified Person is or was an officer, director, employee or fiduciary of the Company or any of its Subsidiaries at or prior to the Effective Time those classes of persons currently entitled to indemnification from the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business Time, whether asserted or with the consent of Parent) as provided in their respective certificates of incorporation claimed prior to, at or 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 in effect as of the date hereof. The Surviving Corporation shall 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, to the fullest extent that the Company would be permitted under applicable Law and required or permitted under the Company Charter or Company Bylaws (or, as relevant, those of the applicable Subsidiary of the Company) as at the date hereof. In the event of any such Action, each indemnified Person shall be entitled to advancement of expenses incurred in the defense of any Action from the Surviving Corporation to the fullest extent that the Company would be permitted under applicable Law and the Company Charter 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, as relevant, those of 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 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, if it is ultimately determined that the criteria for indemnification have not been satisfied in connection with any threatened, pending, or completed civil, criminal, administrative, arbitration or investigative proceeding to which such Person is, or is threatened to be, made a party by reason of the former or present official capacity of such Person. No such indemnified Person shall settle, compromise or consent to the entry of any judgment in any threatened or actual Action for which indemnification could be sought by such indemnified Person hereunder unless Parent consents in writing to such settlement, compromise or consent (which consent shall not be unreasonably withheld, conditioned or delayed). Surviving Corporation agrees to continue and not to repeal or modify, and agree to include, to the extent permitted by applicable Law, in the charter documents for the Surviving Corporation, exculpatory provisions currently existing in the Company Charter (or their substantial equivalent) eliminating personal liability for the Company’s directors to the extent permissible under the CGCL.
(b) For a period of six (6) years after the Effective Time, Parent shall cause to be maintained 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 policies (correct and complete copies of which have been heretofore made available to Parent) for acts or omissions occurring prior to the Effective Time; provided, that Parent 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 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 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 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 who become directors or officers of Disclosure Letter), it being understood that Parent shall nevertheless be obligated to provide such coverage as may be obtained for such 150% amount.
(c) In the event that Parent, the Surviving Corporation or any of its subsidiaries will be entitled to 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.
(b) In the event that the Surviving Corporation or any of its successors or assigns shall (i) consolidates consolidate with or merges merge into any other person Person and is shall 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 transfer all or substantially all of its properties and assets to any personPerson, then, and in each such case, Parent shall cause proper provision will to be made so that the successors successor and assigns assign of Parent or the Surviving Corporation assume assumes the obligations set forth in this Section 5.04.
(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 officers6.8.
(d) The provisions of this Section 5.04 are (i) intended It is the intent that, with respect to be for the benefit of, all advancement 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 beneficiaryobligations under this
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The From the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent and the Surviving Corporation shall jointly and severally indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries (the "COVERED PERSONS"), against all claims, losses, liabilities, damages, judgments, fines, and reasonable fees, costs, and expenses, including reasonable attorneys' fees and disbursements (collectively, "COSTS"), incurred in connection with any claim, action, suit, proceeding, or investigation, whether civil, criminal, administrative or investigative (a "PROCEEDING"), arising out of or pertaining to the fact that the Covered Person is or was an officer, director, employee or agent of the Company or any of its Subsidiaries, to the fullest extent permitted under applicable Law. Each Covered Person shall be entitled to advancement from the Surviving Corporation of reasonable expenses (including attorneys' fees and disbursements) incurred in the defense of any Proceeding arising out of or pertaining to the fact that the Covered Person is or was an officer, director, employee or agent of the Company or any of its Subsidiaries, such advancement to be made within twenty days of receipt by the Surviving Corporation from the Covered Person of a request therefor, provided, that any Covered Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Covered Person is not entitled to indemnification. Alternatively, the Surviving Corporation may provide the defense of any such claim with counsel reasonably acceptable to the Covered Person; provided, however, that if in the opinion of such Covered Person's attorney (who is licensed to practice in the jurisdiction where the proceeding is pending) there exists a conflict of interest between the Surviving Corporation and such Covered Person, such Covered Person shall have the right to engage separate counsel, the reasonable expenses (including attorneys' fees and disbursements) of which shall be paid by the Surviving Corporation or, if not paid by the Surviving Corporation, by the Company's insurance carrier contemplated by Section 4.6(d). The Covered Person shall cooperate with the Surviving Corporation, at the Surviving Corporation's expense, in connection with the defense of any Proceeding.
(b) All rights to indemnification and advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes existing in favor of persons currently entitled to indemnification from the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) Covered Person as provided in their the respective certificates certificate of incorporation or by-laws bylaws (or comparable organizational documents) and the Surviving Corporation in the Merger shall assume, without further action, as of the Effective Time Company and its Subsidiaries and any indemnification agreements of the Company (as each is in effect as prior to the date of this Agreement), shall survive the Merger and shall continue in full force and effect in accordance with their terms. The certificate of incorporation and bylaws of the date hereof. The Surviving Corporation shall advance expenses will contain provisions with respect to any such person promptly upon receipt indemnification, advancement of an undertaking from such person that such expenses shall be repaid should it be ultimately determined that such person is not entitled expenses, and elimination of liability for monetary damages at least as favorable in all material respects to indemnification. In additionthe Covered Persons as those set forth in the current certificate of incorporation and bylaws of the Company, from and for a period of six (6) years after the Effective Time, directors and officers any repeal, amendment or modification of the Company who become directors certificate of incorporation or officers bylaws of the Surviving Corporation or any shall not adversely affect the rights thereunder of its subsidiaries will be entitled the Covered Persons, except to indemnification under the Surviving Corporation’s or any of its subsidiaries’ certificate of incorporation and by-laws (or comparable organizational documents)extent, as the same may be amended from time to time in accordance with their terms and if any, that such modification is required by 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.
(bc) In the event that If the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and is not 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 substantially all of its properties and assets to any personPerson or Persons, or otherwise dissolves or liquidates, then, and in each such case, the Parent and the Surviving Corporation shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.044.6.
(cd) For six years after Following the Effective Time, the Surviving Corporation shall maintain in effect maintain, at no expense to the Company’s current Covered Persons, directors’ ' and officers’ ' liability insurance covering acts or omissions occurring prior to coverage for the Covered Persons for six (6) years following the Effective Time with respect to those persons who are currently covered by claims arising from or related to facts or events that occurred at or before the Company’s directors’ and officers’ liability Effective Time, which insurance policy on terms coverage shall provide them with respect to such the same coverage and amount amounts and shall contain terms and conditions that are in the aggregate no less favorable advantageous to the Covered Persons than those of such policy in effect on the date hereof; provided that , so long as the annual premium therefor shall not be in excess of two hundred percent (200%) of the annual premiums currently paid by the Company in respect of the current policy or policies (the "MAXIMUM PREMIUM"). If such directors' and officers' liability EXECUTION COPY insurance coverage expires, is terminated or is canceled during such six (6) year period or should the annual premium required to maintain such insurance exceed the Maximum Premium, the Surviving Corporation shall obtain and maintain, and the Parent shall cause the Surviving Corporation to obtain and maintain, at no expense to the Covered Persons, as much directors' and officers' insurance coverage as can be obtained and maintained for the remainder of such period for an annualized premium not in excess of the Maximum Premium, on terms and conditions no less advantageous to the Covered Persons than the terms and conditions of the coverage in effect on the date hereof. Notwithstanding anything in this subsection (d) to the contrary, in lieu of maintaining liability insurance coverage pursuant to this subsection (d), Merger Sub or the Surviving Corporation may substitute therefor policies of obtain, at no expense to the Surviving Corporation or its subsidiaries containing Covered Persons, a "tail" policy for the Covered Persons that provides the same coverage and amounts and contains terms and conditions that are in the aggregate no less advantageous to the Covered Persons than those in effect on the date hereof with respect to coverage claims arising from or related to facts or events that occurred at or before the Effective Time and amount no less favorable that is effective for claims asserted during the full six-year period referred to such directors or officersabove.
(de) Notwithstanding anything herein to the contrary, if any claim is asserted or any Proceeding is initiated or commenced against or involving a Covered Person on or prior to the sixth anniversary of the Effective Time (whether such claim or Proceeding is asserted, initiated, or commenced prior to, at or after the Effective Time), the provisions of this Section 4.6 shall continue in effect until final disposition of such claim or Proceeding.
(f) The provisions of this Section 5.04 4.6 are (i) intended to be for the benefit of, and will be enforceable by, each indemnified partyCovered Person, 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 Covered Person may have by contract or otherwise. Each indemnified party is an intended third party beneficiary.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify and hold harmless 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 the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) as provided in their respective certificates of incorporation or 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 in effect as of the date hereof. The Surviving Corporation shall 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 From and after the Effective Time, Allex Xxxtems will fulfill and honor and will cause the Surviving Corporation to fulfill and honor in all respects the obligations of Viasoft pursuant to any indemnification agreements (including those set forth in Viasoft's certificate of incorporation and bylaws) between Viasoft and any of its Subsidiaries and their respective directors and officers (each, an "Indemnified Party") existing prior to the date hereof; provided that Allex Xxxtems and the Surviving Corporation will have no obligation to indemnify an Indemnified Party thereunder in respect of claims, liabilities or damages arising out of a breach of a representation or covenant made by Viasoft in this Agreement knowingly and willfully caused by such Indemnified Party. From and after the Effective Time, such obligations will be the joint and several obligations of Allex Xxxtems and the Surviving Corporation and, by executing this Agreement, Allex Xxxtems hereby assumes such obligations. Allex Xxxtems will cause to be maintained for a period of not less than six years after the Effective Time Viasoft's current directors' and officers' insurance and indemnification policy to the extent that it provides coverage for events occurring prior to the Effective Time (the "D&O Insurance") for all persons who are directors and officers of Viasoft on, or within one year prior to, the Company who become directors date of this Agreement. If the existing D&O Insurance cannot be maintained, expires or officers is terminated or cancelled during such six-year period, Allex Xxxtems will use all reasonable efforts to cause to be obtained such equivalent D&O Insurance as can be obtained for the remainder of such period. The certificate of incorporation and bylaws of the Surviving Corporation will contain the same provisions with respect to indemnification and elimination of liability for monetary damages as are set forth in the certificate of incorporation and bylaws of Viasoft, which provisions will not be amended, repealed or otherwise modified from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, as of the date hereof, within one year prior to the date hereof, or any time after the date hereof and prior to the Effective Time, were directors, officers, employees or agents of Viasoft or its Subsidiaries, unless such modification is required by law and Allex Xxxtems will take all necessary action to cause such provisions to be continuously applicable to all such persons after the Effective Time.
(b) This Section 6.6 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time and will be binding on all successors and assigns of Allex Xxxtems or the Surviving Corporation. In the event that Allex Xxxtems or the Surviving Corporation or any of its subsidiaries will be entitled to 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.
(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 will not be the continuing or surviving corporation corporations or entity entities 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 Mergermerger, transfers or conveys all or substantially all of its properties and assets to any person, then, then and in each such case, proper provision provisions will be made so that the successors and assigns of Allex Xxxtems or the Surviving Corporation will assume the obligations of Allex Xxxtems or the Surviving Corporation, as the case may be, set forth in this Section 5.046.6.
(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 1 contract
Samples: Merger Agreement (Asg Sub Inc)
Indemnification, Exculpation and Insurance. (a) The From and after the Effective Time, Buyer shall, or shall cause the Surviving Corporation shall indemnify to, indemnify, defend and hold harmless harmless, to the extent provided by the Company prior to the Effective Time, the Persons who at or prior to the Effective Time were directors, managing members, officers, employees, agents or stockholders of the Company or any of the Subsidiaries, or were a Consultant (as defined in 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. 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 those classes of persons currently entitled to indemnification from the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) as provided in their respective certificates the Certificate of incorporation or by-laws (Incorporation, the Bylaws, or comparable organizational documents) and the Surviving Corporation in the Merger shall assume, without further action, as documents of any of the Effective Time Subsidiaries as now in effect, and any indemnification agreements or arrangements of the Company in effect as or any of the date hereofSubsidiaries, shall survive the Closing and shall continue in full force and effect in accordance with their terms. The Surviving Corporation Such rights shall advance expenses to not be amended, or otherwise modified in any manner that would adversely affect the rights of the Indemnitees, unless 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 modification is not entitled to indemnificationrequired by Law. In addition, from and after the Effective TimeTime Buyer shall, directors and officers of the Company who become directors or officers of shall cause the Surviving Corporation or to, advance any expenses (including fees and expenses of its subsidiaries will be entitled legal counsel) of any Indemnitee under this Section 6.6 (including in connection with enforcing the indemnity and other obligations referred to indemnification under the Surviving Corporation’s or any of its subsidiaries’ certificate of incorporation and by-laws (or comparable organizational documentsin this Section 6.6), as incurred to the same may be amended from time extent provided by the Company prior to time in accordance with their terms and 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, and to all other indemnity rights and protections as are afforded to other directors and officers of the Surviving Corporation or any of its subsidiariesLaw.
(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 a manner that would adversely affect the rights thereunder of the Indemnitees.
(d) 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 after the Effective Time, with respect to 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 maintained by the Company and the Subsidiaries and Buyer shall provide evidence of such “run-off” or “tail” policy to the Stockholders’ Representatives prior to the Effective Time and shall cause the Surviving Corporation and the Subsidiaries to maintain such policy in effect for the full period of six (6) years after the Effective Time; provided, that the cost of such policy shall not exceed 300% of the current cost of such current policies as of the Effective Time.
(h) The provisions of this Section 6.6: (i) are intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs and his or her representatives; and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract or otherwise.
(i) In the event that Buyer, 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 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 substantially all of its properties and assets to any person, then, and in each such case, proper provision will shall be made so that the successors and assigns of Buyer and of the Surviving Corporation shall assume all of the obligations of the Buyer and the Surviving Corporation set forth in this Section 5.046.6.
(cj) For six years after the Effective Time, The obligations of Buyer and the Surviving Corporation under this Section 6.6 shall maintain not be terminated or modified in effect such a manner as to adversely affect any Indemnitee to whom this Section 6.6 applies without the Company’s current directors’ and officers’ liability insurance covering acts or omissions occurring prior to consent of 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 affected Indemnitee (it being expressly agreed that the Surviving Corporation may substitute therefor policies of the Surviving Corporation or its subsidiaries containing terms with respect Indemnitees to coverage and amount no less favorable to such directors or officers.
(d) The provisions whom this Section 6.6 applies shall be third party beneficiaries 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 beneficiary6.6).
Appears in 1 contract
Samples: Merger Agreement (Am-Source, LLC)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Parent and hold harmless Sub agree that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the current or former directors or officers of the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its Subsidiaries as provided in their respective certificates certificate of incorporation or by-laws bylaws (or comparable organizational documents) and any indemnification or other agreements of the Company 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 (iii) are set forth in Section 5.05 of the Company Letter shall be assumed by the Surviving Corporation in the Merger shall assumeMerger, without further action, as of the Effective Time any indemnification agreements of the Company in effect as of the date hereof. The Surviving Corporation shall 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 at the Effective Time, directors and officers of shall survive the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to indemnification under the Surviving Corporation’s or any of its subsidiaries’ certificate of incorporation Merger and by-laws (or comparable organizational documents), as the same may be amended from time to time shall continue in full force and effect in accordance with their terms and applicable lawterms, and to all other indemnity rights and protections as are afforded to other directors and officers of Parent shall cause the Surviving Corporation or any of its subsidiariesto comply with and honor the foregoing obligations.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of 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 will to be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.045.05.
(c) For six years after 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 Surviving Corporation shall maintain in effect the Company’s current Effective Time with respect to directors’ and officers’ liability insurance covering acts or omissions occurring prior to the Effective Time with respect to those persons who are 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 amount that are no less favorable than those of such policy of the Company in effect on the date hereofof 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 Surviving Corporation may substitute therefor policies of the Surviving Corporation or its subsidiaries containing terms aggregate cost for such “tail” insurance policy with respect to coverage and amount no less favorable 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 directors or officerspurpose.
(d) The provisions of this Section 5.04 are 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. Each indemnified party is an intended third party beneficiary.
Appears in 1 contract
Samples: Merger Agreement (HashiCorp, Inc.)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Lucent agrees that all rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the Company current or former directors or officers of Ascend and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification agreements of Ascend, the existence of which does not constitute a breach of this Agreement, shall be assumed by the Surviving Corporation in the Merger shall assumeMerger, without further action, as of the Effective Time any indemnification agreements of and shall survive the Company Merger and shall continue in full force and effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 lawterms, and to all other indemnity rights and protections as are afforded to other directors and officers of Lucent shall cause the Surviving Corporation or any of its subsidiariesto honor all such rights.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, Lucent shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.045.09.
(c) For six years after the Effective Time, the Surviving Corporation Lucent shall maintain in effect the Company’s 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 the Company’s 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 the Surviving Corporation Lucent may substitute therefor policies of the Surviving Corporation 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 5.04 are 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. Each indemnified party is an intended third party beneficiary.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Parent and Sub shall, and Parent shall cause the Surviving Corporation shall indemnify to, honor and hold harmless fulfill in all respects all obligations of the Company and its Subsidiaries in respect of rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the current or former directors or officers of the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its Subsidiaries as provided in their respective certificates of incorporation or by-laws bylaws (or comparable organizational documents) and any indemnification or other agreements of the Company as in effect on the date of this Agreement and disclosed on Section 6.05 of the Company Letter shall be assumed by the Surviving Corporation in the Merger shall assumeMerger, without further action, as at the Effective Time, and shall survive the Merger and shall continue in full force and effect in accordance with their terms; provided that such obligations shall be subject to any limitation imposed from time to time under applicable Law. In furtherance and not in limitation of the foregoing, during the period commencing at the Effective Time and ending on the sixth anniversary of the Effective Time any indemnification agreements Time, Parent shall (and shall cause the Surviving Corporation and its Subsidiaries to) cause the certificate of incorporation and bylaws (and other similar organizational documents) of the Surviving Corporation and its Subsidiaries to contain provisions with respect to indemnification, advancement of expenses and exculpation that are at least as favorable as the indemnification, advancement of expenses and exculpation provisions contained in the certificate of incorporation and bylaws (or other comparable organizational documents) of the Company in effect and its Subsidiaries as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 during such six-year period, such provisions shall not be repealed, amended or otherwise modified in any manner except as are afforded to other directors and officers of the Surviving Corporation or any of its subsidiariesrequired by applicable Law.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of 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 will to be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.046.05.
(c) For six years after the Effective Time, the Surviving Corporation 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 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 amount amounts no less favorable than those of such policy in effect on the date hereofof this Agreement; provided that in no event shall Parent be required to pay, with respect to the Surviving Corporation entire six year period following the Effective Time, premiums for insurance under this Section 6.05(c) that in the aggregate exceed 225% of the current annual premium paid by the Company (which premium is hereby represented and warranted by the Company to be set forth in Section 6.05(b) of the Company Letter), it being understood 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 225% 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 Surviving Corporation to obtain, at the Effective Time, prepaid (or its subsidiaries containing “tail”) directors’ and officers’ liability insurance policy, in each case, the material terms with respect to of which, including coverage and amount amount, are no less favorable to such directors or and officers than the insurance coverage otherwise required under this Section 6.05(c). Prior to the Effective Time, notwithstanding anything to the contrary set forth in this Agreement, the Company may purchase a six-year prepaid “tail” policy to its existing directors’ and officers’ liability insurance policy (which “tail” policy shall contain the same terms and conditions as such existing policy), and in such event, Parent and the Surviving Corporation shall maintain such “tail” policy in full force and effect and continue to honor their respective obligations thereunder, in lieu of all other obligations of Parent and the Surviving Corporation under the first sentence of this Section 6.05(c) for such six-year period; provided that in no event shall the Company pay a premium for such “tail” policy that in the aggregate exceeds 225% of the current annual premium paid by the Company (it being understood that the Company may nevertheless acquire a “tail” policy providing such coverage as may be obtained for such 225% amount).
(d) The obligations set forth in this Section 6.05 shall not be terminated, amended or otherwise modified in any manner that adversely affects any indemnified party under this Section 6.05 (or his or her heirs and his or her representatives) without the prior written consent of such affected indemnified party (or his or her heirs and his or her representatives). The provisions of this Section 5.04 are 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. Each indemnified party is an intended third party beneficiary.
Appears in 1 contract
Samples: Merger Agreement (Komag Inc /De/)
Indemnification, Exculpation and Insurance. (a) The Parent acknowledges that the Surviving Corporation shall indemnify by operation of law assume the obligations with respect to all rights to indemnification and hold harmless exculpation from liabilities liabilities, including advancement of expenses, for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the current or former directors, officers, employees or agents of the Company or any of its Subsidiaries as provided in the Company’s or any of its Subsidiaries’ certificate of incorporation, the Bylaws or any indemnification Contract between such directors, officers, employees or agents and the Company Subsidiary or any of its Subsidiaries (and any other subsidiary formed after in each case, as in effect on the date hereof in the ordinary course of business or with the consent of Parent) as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and the Surviving Corporation in the Merger shall assumethis Agreement), without further action, as of the Effective Time any indemnification agreements of and such obligations shall survive the Company Merger and shall continue in full force and effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 for a period of not less than six years from the Surviving Corporation or any of its subsidiariesEffective Time.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and other assets to any person, then, and in each such case, Parent shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation shall expressly assume the obligations set forth in this Section 5.045.04 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) For Commencing at or prior to the Effective Time and until six years after the Effective Time, the Surviving Corporation Parent shall maintain in effect (directly or indirectly through the Company’s current existing insurance programs) in effect directors’ and officers’ liability insurance covering in respect of acts or omissions occurring at or prior to the Effective Time with respect to those persons who are Time, covering each person currently covered by the Company’s 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 amount no less favorable than those of such policy in effect on amounts comparable to the date hereofinsurance 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 or shall first use its subsidiaries containing terms with respect 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 no less favorable 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 directors maximum amount; and provided, further that Parent shall not acquire the insurance required by this Section 5.04(c) at or officersprior 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 are 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 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 Contract or otherwise. Each It is expressly agreed that the indemnified party is an intended parties shall be third party beneficiarybeneficiaries of this Section 5.04.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Parent agrees that, and shall cause the Surviving Corporation shall indemnify Company to assume the obligations associated with, all rights of the individuals who on or prior to the Effective Time were directors or officers of the Company or any of its Subsidiaries (collectively, the “Indemnitees”) to indemnification and hold harmless 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 the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) as provided in their the respective certificates Certificate of incorporation Incorporation or by-laws Bylaws (or comparable organizational documents) and the Surviving Corporation in the Merger shall assume, without further action, as of the Effective Time Company or any of its Subsidiaries as now in effect, and any indemnification agreements or arrangements of the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effect as 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 date hereof. The Indemnitees; provided, however, that the Surviving Corporation Company shall advance expenses have no obligation to any provide such person promptly upon receipt of an undertaking from such person indemnification to the extent that such expenses shall be repaid should it be is ultimately determined that such person indemnification is not entitled to indemnification. In additionprohibited under applicable Law.
(b) Parent, from and after the Effective Time, directors shall cause (i) the Certificate of Formation and officers 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 who become directors and (ii) the Certificate of Incorporation and Bylaws (or officers similar organizational documents) of each Subsidiary of the Surviving Corporation 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 any of its subsidiaries will be entitled to indemnification under otherwise modified in a manner that would adversely affect 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 thereunder of the Surviving Corporation or any of its subsidiaries.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.04Indemnitees.
(c) For six years the six-year period commencing immediately after the Effective Time, the Surviving Corporation Company 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 provided, however, that, if the Company’s current directors’ and officers’ liability insurance expires, is terminated or is canceled, Parent shall, or shall cause the Surviving Corporation may substitute therefor policies of the Surviving Corporation Company to, obtain directors’ and officers’ liability insurance covering such acts or its subsidiaries containing 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 directors insurance than those of such policy in effect immediately prior to the date of such expiration, termination or officerscancellation; 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 for such coverage (or such coverage as is available for 150% of such annual premium). Alternatively, with 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, at a cost no greater than that set forth in the preceding sentence, that provides coverage identical in all material respects to the coverage described above.
(d) The provisions of this Section 5.04 are 3.3.3 (i) are intended to be for the benefit of, and will shall be enforceable by, each indemnified partyIndemnitee, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.
(e) In the event that the Surviving Company or any of its successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving company or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Company shall assume all of the obligations thereof set forth in this Section 3.3.3.
(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. Each indemnified 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 is an intended third party beneficiaryenforcing 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) The Surviving Corporation shall indemnify Stanley agrees that all rights to indemnification, advancement of expenses and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the Company current or former directors or officers of Black & Decker and the Company Subsidiary Black & Decker Subsidiaries (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parenteach, an “Indemnified Person”) as provided in their respective certificates of incorporation charters or by-laws bylaws (or comparable organizational documents) and any indemnification or other similar agreements of Black & Decker or any of the Surviving Corporation Black & Decker Subsidiaries, in each case as in effect on the date of this Agreement, shall be assumed by Stanley in the Merger shall assumeMerger, without further action, as of the Effective Time any indemnification agreements and shall survive the Merger and shall continue in full force and effect in accordance with their terms, and for a period of the Company in effect as of the date hereof. The Surviving Corporation shall 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, six years from and after the Effective TimeTime shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Person. 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 Company who become directors or officers of Black & Decker Subsidiaries than are presently set forth in the Surviving Corporation or any of its subsidiaries will be entitled to indemnification under the Surviving Corporation’s or any of its subsidiaries’ certificate of incorporation Black & Decker Articles and by-laws (or comparable organizational documents), as the same may be amended from time to time in accordance with their terms and applicable lawBlack & Decker Bylaws, and to all other indemnity rights and protections as are afforded to other directors and officers such provisions shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of the Surviving Corporation or any of its subsidiariesperson benefited by such provisions.
(b) In the event that the Surviving Corporation Stanley or any of its successors or assigns (i) consolidates with or merges into any other person Person and is not 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 substantially all of its properties and assets to any personPerson, then, and in each such case, Stanley shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation Stanley assume the obligations set forth in this Section 5.046.05 contemporaneous with the closing of any such consolidation, merger, transfer or conveyance.
(c) For six years after At or prior to the Effective Time, the Surviving Corporation Stanley 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 purchase a “tail” directors’ and officers’ liability insurance policy on terms 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 respect to such coverage for six years following the Effective Time of not less than the existing coverage and amount no have other terms not less favorable to the insured persons than those of the directors’ and officers’ liability insurance coverage currently maintained by Black & Decker or the Black & Decker Subsidiaries. Stanley shall maintain 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 full force 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 ofeffect, 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 continue to indemnification or contribution that any such person may have by contract or otherwise. Each indemnified party is an intended third party beneficiaryhonor the obligations thereunder.
Appears in 1 contract
Samples: Merger Agreement (Stanley Works)
Indemnification, Exculpation and Insurance. (a) The Parent and Merger Sub agree that the certificate of incorporation and bylaws of the Surviving Corporation shall indemnify contain provisions no less favorable with respect to all rights to indemnification, advancement of expenses and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes in favor of persons currently entitled to indemnification from the current or former directors or officers of the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof its Subsidiaries than are provided in the ordinary course of business or with the consent of Parent) as provided in their Company’s and its Subsidiaries’ respective certificates of incorporation or by-laws bylaws (or comparable organizational documents) and the Surviving Corporation in the Merger shall assume, without further action, as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would 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. Parent and Merger Sub further agree that any indemnification agreements of the Company (as in effect as on the date of this Agreement) in favor of the date hereof. 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 in the Merger, without further action, at the Effective Time, and shall advance expenses 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 any the Effective Time, unless such person promptly upon receipt of an undertaking from such person that such expenses modification shall be repaid should it be ultimately determined that such person is not entitled to indemnificationrequired by Law. In addition, from From and after the Effective Time, directors and officers of the Company who become directors or officers of Parent shall cause the Surviving Corporation or any of its subsidiaries will be entitled to pay and perform in a timely manner such 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 subsidiariesobligations.
(b) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and is not 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 substantially all of 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 will to be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.046.5.
(c) For six years after From the Offer Closing through the sixth anniversary of the Effective Time, Parent shall, or shall cause the Surviving Corporation shall to, 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 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 amount amounts no less favorable than those of such policy in effect on the date hereofof 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 Surviving Corporation Company to obtain, on or its subsidiaries containing prior to the Closing Date, prepaid (or “tail”) directors’ and officers’ liability insurance policy at Parent’s expense, in each case, the material terms with respect to of which, including coverage and amount 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 officersthe 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 5.04 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 Person may have by contract Contract or otherwise. Each indemnified party is an intended third party beneficiaryParent 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) The Surviving Corporation shall indemnify Fidelity agrees to maintain in effect in accordance with their terms all rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the current or former directors or officers of the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its Subsidiaries as provided in their respective certificates of incorporation or 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 in effect as of the date hereof. The Surviving Corporation shall 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 indemnificationCompany. In addition, from and after the Effective Time, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries Fidelity will be entitled to 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 subsidiariesFidelity.
(b) In the event that the Surviving Corporation Fidelity 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) except for any disposition of assets by the Surviving Corporation as required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation Fidelity assume the obligations set forth in this Section 5.047.4.
(c) For six years after Immediately prior to the Effective TimeClosing, the Surviving Corporation Company shall maintain in effect purchase, from an insurer or insurers chosen by the Company’s current directors’ , one or more single payment, run-off policies of directors and officers’ 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 '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 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 officersrate.
(d) The provisions of this Section 5.04 7.4 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 or contribution that any such person may have by contract or otherwise. Each indemnified party is an intended third party beneficiary.
Appears in 1 contract
Samples: Merger Agreement (Fidelity National Financial Inc /De/)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation From and after the Initial Holdco Merger Effective Time, Marriott shall indemnify and hold harmless from liabilities for acts each individual who is as of the date of this Agreement, or omissions who becomes prior to the Initial Holdco Merger Effective Time, a director or officer of Starwood or any of its subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Initial Holdco Merger Effective Time, serving at the request of Starwood, as applicable, 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, incurred in connection with any claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including with respect to matters existing or occurring at or prior to the Initial Holdco Merger Effective Time those classes of persons currently entitled to indemnification from the Company (including this Agreement and the Company Subsidiary (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 other subsidiary formed 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 date hereof in Initial Holdco Merger Effective Time, to the ordinary course of business or with the consent of Parent) same extent as provided in their respective certificates of incorporation or 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 in effect 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. The Surviving Corporation shall advance expenses to In the event of any such claim, action, suit or proceeding, (i) each Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit or proceeding from Marriott to the same extent as such Indemnified Parties are entitled to advance of expenses as of the date of this Agreement by Starwood pursuant to the Starwood Charter, the Starwood By-laws or the governing or organizational documents of any subsidiary of Starwood, as applicable, and any indemnification agreements with directors and officers of Starwood in existence as of the date of this Agreement and listed in Section 5.4(a) of the Starwood Disclosure Letter; provided that any person promptly upon receipt to whom expenses are advanced provides an undertaking, if and only to the extent required by Applicable Law, the Starwood Charter or the Starwood By-laws or the governing or organizational documents of an undertaking from any Starwood subsidiary, as applicable, and any indemnification agreements with directors and officers of Starwood in existence as of the date of this Agreement and listed in Section 5.4(a) of the Starwood Disclosure Letter, to repay such person that such expenses shall be repaid should advances if it be is ultimately determined that such person is not entitled to indemnificationindemnification and (ii) Marriott shall, and shall cause its subsidiaries to, cooperate in the defense of any such matter. In additionthe event that Marriott, from and after the Effective Time, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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.
(b) In the event that the Surviving Corporation or any of its 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, 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 will to be made so that the successors and assigns of Marriott or the Surviving Corporation Corporation, as applicable, assume the obligations set forth in this Section 5.045.4.
(cb) For a period of six years from and after the Effective TimeClosing Date, the Surviving Corporation Marriott shall maintain either cause to be maintained in effect the Company’s current policies of directors’ and officers’ liability insurance covering acts and fiduciary liability insurance maintained by Starwood or omissions occurring prior any of its subsidiaries or provide substitute polices for not less than the existing coverage and have other terms not less favorable to the Effective Time insured persons with respect to those persons who are currently covered by claims arising from facts or events that occurred on or before the Company’s directors’ and officers’ liability insurance policy on terms Initial Holdco Merger Effective Time, except that in no event shall Marriott be required to pay with respect to such coverage insurance policies (or substitute insurance policies) of Starwood in respect of any one policy year more than 300% of the annual premium payable by Starwood for such insurance for the year ending December 31, 2015 (the “Annual D&O Cap”), and amount no less favorable than those of if Marriott is unable to obtain the insurance required by this Section 5.4 for any year within such policy in effect on six-year period, it shall obtain as much comparable insurance as possible for such year for an annual premium equal to the date hereofAnnual D&O Cap; provided that the Surviving Corporation may substitute therefor policies in lieu of the Surviving Corporation foregoing, Starwood may obtain at or its subsidiaries containing terms with respect prior to the Initial Holdco Merger Effective Time a six-year “tail” policy under Starwood’s existing directors and officers insurance policy providing equivalent coverage to that described in the preceding sentence if and to the extent that the same may be obtained for an amount no less favorable to that is not in excess of the maximum aggregate amount otherwise payable for such directors or officerssix-year period under this Section 5.4(b).
(dc) The provisions of this Section 5.04 are 5.4 (i) shall survive consummation of the Combination Transactions, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified partyor insured party (including the Indemnified Parties), his or her heirs and his or her representatives representatives, and (iiiii) 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 an intended third party beneficiary.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Marriott International Inc /Md/)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Stanley agrees that all rights to indemnification, advancement of expenses and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the Company current or former directors or officers of Black & Decker and the Company Subsidiary Black & Decker Subsidiaries (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parenteach, an “Indemnified Person”) as provided in their respective certificates of incorporation charters or by-laws bylaws (or comparable organizational documents) and any indemnification or other similar agreements of Black & Decker or any of the Surviving Corporation Black & Decker Subsidiaries, in each case as in effect on the date of this Agreement, shall be assumed by Stanley in the Merger shall assumeMerger, without further action, as of the Effective Time any indemnification agreements and shall survive the Merger and shall continue in full force and effect in accordance with their terms, and for a period of the Company in effect as of the date hereof. The Surviving Corporation shall 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, six years from and after the Effective TimeTime shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Person. 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 Company who become directors or officers of Black & Decker Subsidiaries than are presently set forth in the Surviving Corporation or any of its subsidiaries will be entitled to indemnification under the Surviving Corporation’s or any of its subsidiaries’ certificate of incorporation Black & Decker Articles and by-laws (or comparable organizational documents), as the same may be amended from time to time in accordance with their terms and applicable lawBlack & Decker Bylaws, and to all other indemnity rights and protections as are afforded to other directors and officers such provisions shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of the Surviving Corporation or any of its subsidiariesperson benefited by such provisions.
(b) In the event that the Surviving Corporation Stanley or any of its successors or assigns (i) consolidates with or merges into any other person Person and is not 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 substantially all of its properties and assets to any personPerson, then, and in each such case, Stanley shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation Stanley assume the obligations set forth in this Section 5.046.05 contemporaneous with the closing of any such consolidation, merger, transfer or conveyance.
(c) For six years after At or prior to the Effective Time, the Surviving Corporation Stanley 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 purchase a “tail” directors’ and officers’ liability insurance policy on terms 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 respect to such coverage for six years following the Effective Time of not less than the existing coverage and amount no have other terms not less favorable to the insured persons than those of the directors’ and officers’ liability insurance coverage currently maintained by Black & Decker or the Black & Decker Subsidiaries. Stanley shall maintain such policy in effect on full force and effect, and continue to honor 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 officersobligations thereunder.
(d) The provisions of this Section 5.04 are 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 (iiiii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person Person may have by contract or otherwise. Each indemnified party is an intended third party beneficiary, 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) The Surviving Corporation shall indemnify Parent and hold harmless 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 those classes of persons currently entitled to indemnification from the Company and the Company Subsidiary (and any other subsidiary formed after rights relating to the advancement of expenses) existing as of the date hereof in favor of the ordinary course current or former directors, officers, employees or agents of business or with the consent of ParentCompany (each, an "Indemnitee") as provided in their respective certificates of incorporation or bythe Company Certificate and the Company By-laws (or comparable organizational documents) and indemnification Contracts in existence as of the date hereof between the Company and any of them shall be assumed by the Surviving Corporation in the Merger shall assumeCorporation, without further action, as of the Effective Time and shall survive the Merger and shall continue in full force and effect in accordance with their terms. Such rights shall not be amended, or otherwise modified in any indemnification agreements manner that would adversely affect the rights of the Company in effect as of the date hereof. The Surviving Corporation shall advance expenses to any Indemnitees, unless 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 modification is not entitled to indemnificationrequired by Law. In addition, from 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, directors and officers of Parent shall cause the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 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 a manner that would adversely affect the rights thereunder of the Indemnitees.
(c) For six years after the Effective Time, Parent shall, or shall cause the Surviving Corporation to, obtain and maintain director's and officers' liability insurance with respect to acts, errors or omissions occurring prior to the Effective Time ("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 in no event shall Parent, any of its subsidiariesSubsidiaries or the Surviving Corporation be obligated or required to pay aggregate premiums for insurance under this Section 6.04(c) in any annual coverage period in excess of 150% of the amount of the aggregate premiums paid by the Company for the period from November 1, 2006 to, and including, October 31, 2007, for such purpose (which premiums for such period are hereby represented and warranted by the Company to be $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. Subject to this Section 6.04(c), 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 with another financially sound insurance company.
(bd) The provisions of this Section 6.04 are (i) intended to be for the benefit of, and will be enforceable by, each Indemnitee and his or her heirs 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) 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, 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 will to be made so that the successors successor and assigns assign of the Surviving Corporation assume Corporation, as the case may be, assumes the obligations set forth in this Section 5.046.04.
(cf) For six years after the Effective Time, The obligations of Parent and the Surviving Corporation under this Section 6.04 shall maintain not be terminated or modified in effect such a manner as to adversely affect any Indemnitee to whom this Section 6.04 applies without the Company’s current directors’ and officers’ liability insurance covering acts or omissions occurring prior to consent of 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 affected Indemnitee (it being expressly agreed that the Surviving Corporation may substitute therefor policies of the Surviving Corporation or its subsidiaries containing terms with respect Indemnitees to coverage and amount no less favorable to such directors or officers.
(d) The provisions whom this Section 6.04 applies shall be third party beneficiaries 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 beneficiary6.04).
Appears in 1 contract
Samples: Merger Agreement (Cimnet Inc/Pa)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Parent agrees that all rights, if any, of the individuals who on or prior to the Closing Date are or were directors, officers or employees of the Company or any of its Subsidiaries (collectively, the “Shareholder Indemnitees”) to indemnification and hold harmless 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 the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) Closing Date as provided in their the respective certificates certificate of incorporation or by-laws (or comparable organizational documents) and the Surviving Corporation in the Merger shall assume, without further action, as documents of the Effective Time Company or any of the Subsidiaries as now in effect, and any indemnification agreements or arrangements of the Company in effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to indemnification under the Surviving Corporation’s or any of its subsidiaries’ certificate of incorporation Subsidiaries listed on Schedule 6.14 shall survive the Closing Date and by-laws (or comparable organizational documents), as the same may be amended from time to time shall continue in full force and effect in accordance with their terms and applicable lawterms, and subject to all other indemnity the following sentence. Such rights and protections as are afforded to other directors and officers may be amended, or otherwise modified in any manner that does not adversely affect the rights of the Surviving Corporation Shareholder Indemnitees or any of its subsidiariesas required by Applicable Law.
(b) In the event that any Claim is asserted or made, any determination required to be made with respect to whether a Shareholder Indemnitee’s conduct complies with the Surviving Corporation standards set forth under Applicable Law, the applicable organizational documents of the Company or any of its successors the Subsidiaries or assigns (i) consolidates with any indemnification agreements or merges into arrangements of the Company or any other person and is not of the continuing or surviving corporation or entity of such consolidation or merger or (ii) except for any disposition of assets by Subsidiaries listed on Schedule 6.14, as the Surviving Corporation required by applicable law in connection with the Mergercase may be, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will shall be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.04by independent legal counsel.
(c) Each of Parent and the Shareholder Indemnitees shall cooperate, and cause their respective Affiliates to cooperate, in the defense of any Claim with respect to which the Shareholder Indemnitee is entitled to indemnification and exculpation under Section 6.14(a) 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) For six years the six-year period commencing immediately after the Effective TimeClosing Date, the Surviving Corporation Parent shall maintain in effect the Company’s current directors’ and officers’ liability insurance (collectively, the “Company D&O Insurance”) covering acts or omissions occurring prior to the Effective Time 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 the Surviving Corporation Parent may substitute therefor policies of a reputable insurance company the Surviving Corporation or its subsidiaries containing terms with respect to of which, including coverage and amount amount, are no less favorable to such directors or officersand officers than the insurance coverage otherwise required under this Section 6.14(d).
(de) Parent hereby agrees that, irrespective of whether Shareholder Indemnitee is employed by a Closing Date Principal Shareholder and therefore may have certain rights to indemnification, advancement of expenses and/or insurance provided by a Closing Date Principal Shareholder or its Affiliates, the Surviving Company (or its applicable Affiliate) is the indemnitor of first resort with respect to rights to indemnification or advancement of expenses provided under the organizational documents of the Company and its Subsidiaries or under any other indemnification agreement or arrangement listed on Schedule 6.14 (i.e., the Shareholder Indemnitee’s rights under the organizational documents of the Company and its Subsidiaries or under any other indemnification agreement or arrangement listed on Schedule 6.14 are primary as to the coverage provided thereunder without regard to any rights Shareholder Indemnitee may have to seek or obtain similar indemnification or advancement of similar expenses from any Closing Date Principal Shareholder, any of its Affiliates (other than the Company or any of its Subsidiaries) or from any insurance policy for the benefit of such Shareholder Indemnitee (other than the Company D&O Insurance), and any obligation of any Closing Date Principal Shareholder or any of its Affiliates (other than the Company or any of its Subsidiaries) to provide advancement or indemnification for all or any portion of the same expenses, liabilities, judgments, penalties, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such expenses, liabilities, judgments, penalties, fines and amounts paid in settlement) incurred by Shareholder Indemnitee and any rights of recovery of any Closing Date Principal Shareholder or any of its Affiliates (other than the Company or any of its Subsidiaries) or any Shareholder Indemnitee under any insurance policy for the benefit of such Shareholder Indemnitee (other than the Company D&O Insurance) are secondary), and if any Closing Date Principal Shareholder or any of its Affiliates (other than the Company or any of its Subsidiaries) or any Shareholder Indemnitee collects under any insurance policy or indemnity agreement for the benefit of such Shareholder Indemnitee (other than the Company D&O Insurance), any amounts that would be otherwise payable or indemnifiable under the organizational documents of the Company and its Subsidiaries or under any other indemnification agreement or arrangement listed on Schedule 6.14 with respect to a Shareholder Indemnitee, then (x) the Person who made such payments to or for the benefit of the Shareholder Indemnitee shall be fully subrogated to all rights of the applicable Shareholder Indemnitee with respect to any such payment and (y) Parent shall fully indemnify, reimburse and hold harmless such Person for all such payments actually made by such Person.
(f) Parent hereby unconditionally and irrevocably waives, relinquishes and releases, and covenants and agrees not to exercise, any rights that Parent may now have or hereafter acquire against any Closing Date Principal Shareholder, any of their respective Affiliates, or any Shareholder Indemnitee that arise from the existence, payment, performance or enforcement of Parent’s obligations under this Section 6.14, including any right of subrogation (whether pursuant to contract or common law), reimbursement, exoneration, contribution or indemnification, or to be held harmless, and any right to participate in any claim or remedy of Shareholder Indemnitee against any Closing Date Principal Shareholder, any of their respective Affiliates or any Shareholder Indemnitee, whether or not such claim, remedy or right arises in equity or under contract, statute or common law; provided, however, that the provisions of this Section 6.14(f) shall not limit any Parent Indemnified Party’s right to indemnity under Article IX;
(g) The provisions of this Section 5.04 are 6.14: (i) are intended to be for the benefit of, and will shall be enforceable by, each indemnified partyShareholder Indemnitee, his or her heirs and his or her representatives representatives; and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person Person may have by contract or otherwise. Each indemnified .
(h) In the event that Parent 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, proper provision shall be made so that the successors and assigns of Parent shall assume all of the obligations thereof set forth in this Section 6.14.
(i) Except as otherwise permitted herein, the obligations of Parent under this Section 6.14 shall not be terminated or modified in such a manner as to adversely affect any Shareholder Indemnitee, any Closing Date Principal Shareholder or any of their respective Affiliates to whom this Section 6.14 applies without the consent of the affected party is an intended (it being expressly agreed that the Shareholder Indemnitees, any Closing Date Principal Shareholder or any of its Affiliates to whom this Section 6.14 applies shall be third party beneficiarybeneficiaries of this Section 6.14).
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Buyer and hold harmless Sub agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the Company current or former directors, officer, employees or agents of Seller and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its Subsidiaries as provided in their respective certificates Articles or Certificates of incorporation Incorporation or 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 or arrangements of Seller shall be assumed by Buyer, shall survive the Merger and shall continue in full force and effect, without amendment, for six years after 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. Buyer shall pay any expenses of any indemnified person under this Section 6.14 in advance of the Company in effect as final disposition of the date hereof. The Surviving Corporation shall advance expenses any action, proceeding or claim relating to any such person promptly 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 an any undertaking from to repay such person that advances required under applicable law. Buyer shall cooperate in the defense of any such expenses shall be repaid should it be ultimately determined that such person is not entitled to indemnificationmatter. In addition, from and after the Effective Time, directors and or officers of the Company Seller and its Subsidiaries who become directors or officers of the Surviving Corporation Buyer or any of its subsidiaries Subsidiaries will be entitled to 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 subsidiariesBuyer.
(b) In the event that either of the Surviving Corporation or Buyer or any of its successors or assigns (i) consolidates with or merges with or into any other person and is not 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 substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of Buyer or the Surviving Corporation Corporation, as applicable, will assume the obligations thereof set forth in this Section 5.046.14.
(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 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 toto , 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.
(d) For six years after the Effective Time, Buyer or the Surviving Corporation shall maintain in effect the Seller'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 Sellers' directors' and officers' liability insurance policy on terms with respect to such coverage and amount no less favorable in the aggregate to Seller's directors and officers currently covered by such insurance than those of such policy in effect on the date hereof; provided that Buyer may substitute therefor policies of Buyer or its Subsidiaries containing terms with respect to coverage and amount no less favorable to such directors or officers.
(e) Buyer shall cause the Surviving Corporation or any successor thereto to comply with its obligations under this Section 6.14.
Appears in 1 contract
Samples: Merger Agreement (TMP Worldwide Inc)
Indemnification, Exculpation and Insurance. (a) The Parent acknowledges and agrees that the Surviving Corporation shall indemnify by operation of law assume the obligations with respect to all rights to indemnification and hold harmless exculpation from liabilities liabilities, including advancement of expenses, for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the current or former directors, officers, employees or agents of the Company or any of its subsidiaries as provided in the Company’s or any of its subsidiaries’ certificate or articles of incorporation, bylaws or other organizational documents or any indemnification Contract between such directors, officers, employees or agents and the Company Subsidiary or any of its subsidiaries (and any other subsidiary formed after in each case, as in effect on the date hereof in the ordinary course of business or with the consent of Parent) as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and the Surviving Corporation in the Merger shall assumethis Agreement), without further action, as of the Effective Time any indemnification agreements of and such obligations shall survive the Company Merger and shall continue in full force and effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 for a period of not less than six (6) years from the Effective Time and applicable law, and that all rights to all other indemnity rights and protections as are afforded to other directors and officers indemnification in respect of the Surviving Corporation any action pending or asserted or any claim made within such period shall continue until the disposition of its subsidiariessuch 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 Person and is not the continuing or surviving corporation or entity of such consolidation or merger 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 substantially all of its properties and other assets to any personPerson, then, and in each such case, the Surviving Corporation shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation shall expressly assume the obligations set forth in this Section 5.045.04 for a period of not less than six (6) years from the Effective Time.
(c) For six (6) years after the Effective Time, the Surviving Corporation shall maintain in effect (directly or indirectly through the Company’s current existing insurance programs) in effect directors’ and officers’ liability insurance covering in respect of acts or omissions occurring at or prior to the Effective Time with respect to those persons who are Time, covering each person currently covered by the Company’s directors’ and officers’ liability insurance policy maintained by the Company or its subsidiaries on terms with respect to such coverage and amount no less favorable than those of such policy in effect on amounts comparable to the date hereofinsurance 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 or shall first use its subsidiaries containing terms with respect 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 an annual premium in excess of 200% of the last annual premium paid by the Company prior to the date of this Agreement (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 no less favorable equal to 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 directors or officersmaximum amount.
(d) The provisions of this Section 5.04 are (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 representatives, and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person Person may have by contract Contract or otherwise. Each It is expressly agreed that the indemnified party is an intended parties shall be third party beneficiarybeneficiaries of this Section 5.04.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The From and after the Effective Time, Parent will cause the Surviving Corporation shall indemnify to fulfill and hold harmless from liabilities for acts honor in all respects the obligations of the Company pursuant to (i) each indemnification agreement currently in effect between the Company and each person who is or omissions occurring was a director or officer of the Company at or prior to the Effective Time those classes of persons currently entitled to indemnification from the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof Time, which agreements are listed in the ordinary course of business or with the consent of Parent) as provided in their respective certificates of incorporation or by-laws (or comparable organizational documentsSchedule 5.6(a) and the Surviving Corporation in the Merger shall assume, without further action, as of the Effective Time (ii) any indemnification agreements provisions under the Company's Restated Certificate of the Company Incorporation or Bylaws as each is in effect as of on the date hereof. The certificate of incorporation and the bylaws of the Surviving Corporation shall advance expenses contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's certificate of incorporation and bylaws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time were directors or officers of the Company, unless 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 modification is not entitled required by law.
(b) After the Stockholder Approval has been obtained and as close as practicable to indemnification. In addition, from and after the Effective Time, directors the Company shall purchase a six-year (measured from the Effective Time) extended reporting period endorsement ("reporting tail coverage") under its existing directors' and officers officers' liability insurance coverage covering those persons (including, without limitation, the controlling shareholder specified therein) who are currently covered by the Company's directors' and officers' liability insurance policy (a copy of which has been provided to Parent) on terms no more favorable to such indemnified parties than the terms of such current insurance coverage; provided, that the cost of such reporting tail coverage shall not exceed 200% of the Company who become directors or officers current annualized costs of all the Company's directors' and officers' liability insurance policies effective during the period from January 28, 2001 to January 28, 2002.
(c) The obligations of the Company, the Surviving Corporation and Parent contained in this Section 5.6 shall be binding on the successors and assigns of Parent and the Surviving Corporation. If Parent, the Surviving Corporation or any of its subsidiaries will be entitled to 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.
(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 shall 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 substantially all of its properties and assets to any person, then, then and in each such case, proper provision will provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation Corporation, as the case may be, shall assume the obligations set forth in this Section 5.045.6.
(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 1 contract
Samples: Merger Agreement (Buy Com Inc)
Indemnification, Exculpation and Insurance. (a) The From and after the Effective Time, Parent shall, and shall cause the Surviving Corporation shall to, and the Surviving Corporation shall, indemnify and hold harmless harmless, to the fullest extent permitted under applicable Law, the individuals who on or prior to the Effective Time were directors, officers or employees of the Company or any of its Subsidiaries (collectively, the “Indemnitees”) with respect to all acts or omissions by them in their capacities as such or taken at the request of the Company or any of its Subsidiaries at any time prior to the Effective Time. Parent agrees that, and shall cause the Surviving Corporation to assume, all rights of the Indemnitees 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 the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) as provided in the respective Organizational Documents of 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 disclosed in Section 6.04 of the Company Disclosure Schedule shall survive the Merger and shall continue in full force and effect in accordance with their respective certificates terms. For a period of incorporation not less than six years from the Effective Time, such rights shall not be amended, or by-laws (otherwise modified in any manner that would adversely affect the rights of the Indemnitees with respect to indemnification and exculpation from liabilities for acts or comparable organizational documents) and omissions occurring prior to the Effective Time, unless such modification is required by Law. In addition, the Surviving Corporation in shall pay any expenses of any Indemnitee under this Section 6.04 as incurred to the Merger shall assumefullest extent permitted under applicable Law, without further action, as of provided that the Effective Time any indemnification agreements of the Company in effect as of the date hereof. The Surviving Corporation shall advance person to whom expenses to any such person promptly upon receipt of are advanced provides an undertaking from to repay such person that such expenses shall be repaid should it be ultimately determined that such person is not entitled advances to indemnification. In additionthe extent required by applicable Law.
(b) Parent, from and after the Effective Time, directors shall cause (i) the Certificate of Incorporation and officers of the Company who become directors or officers 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 Bylaws of the Company and (ii) the Organizational Documents of each Subsidiary of the Surviving Corporation to contain the current provisions regarding indemnification of directors, officers, employees which provisions in each case shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees.
(c) Except as provided in the Ancillary Agreement with respect to the Action, the Indemnitee shall have the right (but not the obligation) to control the defense of, including the investigation of, any litigation, claim or proceeding (each, a “Claim”) relating to any acts or omissions covered under this Section 6.04 with counsel selected by the Indemnitee; provided, however, that (i) such control of the defense and the selection of counsel by the Indemnitee is in compliance with the provisions of any tail insurance policy obtained pursuant to Section 6.04(f) below, (ii) the Surviving Corporation shall be permitted to participate in the defense of such Claim at its own expense and (ii) the Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not be unreasonably withheld or delayed.
(d) In the event any Claim is asserted or made, any determination required to be made with respect to whether an Indemnitee’s conduct complies with the standards set forth under applicable Law, the applicable organizational documents of the Company or any of its subsidiaries will be entitled to Subsidiaries or any indemnification under agreements or arrangements of the Surviving Corporation’s Company or any of its subsidiaries’ certificate of incorporation and by-laws (or comparable organizational documents)Subsidiaries, as the same case may be, shall be made by independent legal counsel selected jointly by such Indemnitee and the Surviving Corporation.
(e) Each of Parent, 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 amended reasonably requested in connection therewith.
(f) As of the Effective Time, ECCA shall be permitted to have obtained, and, for a six-year period thereafter, the Surviving Corporation shall cause ECCA to maintain in effect, a so-called “tail” policy for such six-year period from time the ECCA’s current directors’ and officers’ liability insurance carrier, covering acts or omissions occurring prior to time in accordance the Effective Time with their respect to those persons who are currently covered by ECCA’s directors’ and officers’ liability insurance policy on terms with respect to such coverage and applicable law, and amount no less favorable to all other indemnity rights and protections as are afforded to other ECCA’s directors and officers currently covered by such insurance than those of such policy in effect on the date hereof (the “Minimum Insurance”), provided, however, that if ECCA is unable to obtain the Minimum Insurance for a premium of $750,000 or less, then ECCA shall, at the election of the Surviving Corporation Representative (i) obtain as much comparable insurance as practicable for a premium of $750,000, or (ii) obtain the Minimum Insurance, in which case the premium cost thereof that exceeds $750,000 shall be the “Excess D&O Tail Cost.”
(g) The provisions of this Section 6.04: (i) are intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs and his or her representatives, and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have, including pursuant to any indemnification agreements or arrangement of the Company or any of its subsidiariesSubsidiaries set forth in Section 6.04 of the Company Disclosure Schedule.
(bh) 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will shall be made so that the successors and assigns of the Surviving Corporation shall assume all of the obligations thereof set forth in this Section 5.046.04.
(ci) For six years 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 are third party beneficiaries of this Section 6.04).
(j) Parent hereby unconditionally guarantees, from and after the Effective Time, the Surviving Corporation shall maintain in effect timely payment of all funds owed by, and 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 timely performance of such policy in effect on the date hereof; provided that all other obligations of, the Surviving Corporation may substitute therefor policies under this Section 6.04. Parent agrees that its payment obligations hereunder are unconditional, irrespective of the Surviving Corporation validity or its subsidiaries containing terms with respect to coverage and amount no less favorable to such directors or officers.
(d) The provisions 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 5.04 are 6.04 constitute a guaranty of payment and not merely of collectability and Parent hereby waives (i) intended to be for the benefit ofpromptness, diligence, presentment, demand of payment, protest and order in connection with this guarantee, and will be enforceable byall other defenses in the nature of suretyship or guarantor’s defenses, each indemnified party, his or her heirs and his or her representatives and (ii) in addition to, and not in substitution for, any requirement that any party enforcing the guarantee pursue or exhaust any right to take any action against the Surviving Company or any other rights person prior to indemnification or contribution that contemporaneously with proceeding to exercise any such person may have by contract or otherwise. Each indemnified party is an intended third party beneficiaryright against Parent hereunder.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Parent and hold harmless Merger Sub agree that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the current or former directors or officers of the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its Subsidiaries as provided in their respective certificates of incorporation or by-laws 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 shall assumeMerger, without further action, as of at the Effective Time any indemnification agreements of Time, and shall survive the Company Merger and shall continue in full force and effect as of the date hereofin accordance with their terms. The Surviving Corporation shall 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 From and after the Effective Time, directors Parent and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will shall be entitled jointly and severally liable to pay and perform in a timely manner such 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 subsidiariesobligations.
(b) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and is not 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 substantially all of 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 will to be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.046.5.
(c) For six years after From the Offer Closing through the sixth anniversary of the Effective TimeTime (such period, the “Tail Period”), Parent shall, or shall cause the Surviving Corporation shall to, 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 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 amount amounts no less favorable than those of such policy in effect on the date hereofof 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 Surviving Corporation Company to obtain, on or its subsidiaries containing prior to the Closing Date, prepaid (or “tail”) directors’ and officers’ liability insurance policy at Parent’s expense, in each case, the material terms with respect to of which, including coverage and amount 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 any 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 officersthe 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) The provisions of this Section 5.04 6.5 are (i) intended to be for the benefit of, and from and after the Effective Time 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 Person may have by contract Contract or otherwise. Each indemnified party is an intended third party beneficiary.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Company and hold harmless Parent agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes (and rights for advancement of persons currently entitled to indemnification from expenses) now existing in favor of the current or former directors or officers of the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its Subsidiaries as provided in their respective certificates of incorporation or by-laws bylaws (or comparable organizational documents) and any indemnification or other agreements of the Company or its Subsidiaries as in effect on the date of this Agreement shall be assumed by the Surviving Corporation in the Merger shall assumeMerger, without further action, as of the Effective Time any indemnification agreements of and shall survive the Company Merger and shall continue in full force and effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 subsidiariesterms.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, it shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.045.07.
(c) For six years after the Effective Time, the Surviving Corporation shall maintain in effect (i) the Company’s 's and its Subsidiaries' current directors’ ' and officers’ ' liability insurance covering acts or omissions occurring prior to the Effective Time with respect to those persons who are covering each person currently covered by the Company’s 's and its Subsidiaries' directors’ ' and officers’ ' liability insurance policy and (ii) the Company's and its Subsidiaries' 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 Company Benefit Plan, in each case on terms with respect to such coverage and amount amounts no less favorable than those of each 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 Company with respect to coverage and amount no less favorable to such directors directors, officers or officersfiduciaries; provided however, that in no event shall the Surviving Corporation be required to pay aggregate premiums for insurance under this Section 5.07(c) in excess of 150% of the amount of the aggregate premiums paid by a party to this Agreement in 2001 on an annualized basis for such purpose, provided that the Surviving Corporation shall nevertheless be obligated to provide such coverage as may be obtained for such 150% amount.
(d) The Notwithstanding anything in this Agreement to the contrary, the provisions of this Section 5.04 5.07 are (i) intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs 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 an intended third party beneficiary.
Appears in 1 contract
Samples: Merger Agreement (Allied Riser Communications Corp)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Live Nation agrees that all rights to indemnification, advancement of expenses and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the Company current or former directors or officers or employees or agents of Ticketmaster and the Company Subsidiary (and any other subsidiary formed after Ticketmaster Subsidiaries to the date hereof in the ordinary course of business or with the consent of Parent) as provided in fullest extent permissible by their respective certificates of incorporation or by-laws bylaws (or comparable organizational documents) and any indemnification or other similar agreements of Ticketmaster or any of the Surviving Corporation Ticketmaster Subsidiaries as in effect as of the date of this Agreement, in each case as in effect on the date of this Agreement, shall be assumed by Live Nation in the Merger shall assumeMerger, without further action, as of the Effective Time any indemnification agreements of and shall survive the Company Merger and shall continue in full force and effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 subsidiariesterms.
(b) In the event that the Surviving Corporation Live Nation or any of its successors or assigns (i) consolidates with or merges into any other person Person and is not 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 substantially all of its properties and assets to any personPerson, then, and in each such case, Live Nation shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation Live Nation assume the obligations set forth in this Section 5.046.5.
(c) For six years From and after the Effective Time, Live Nation shall use reasonable best efforts to cause the Surviving Corporation shall maintain in effect individuals serving as officers and directors of Ticketmaster or any of the Company’s current directors’ and officers’ liability insurance covering acts or omissions occurring 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 those persons who are currently covered 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 Company’s directors’ ' and officers’ ' liability insurance policy on maintained by Live Nation or by directors' and officers' liability insurance policies, issued by reputable insurers, with policy limits, terms with respect to such coverage and amount no less conditions at least as favorable than those as the limits, terms and conditions in the existing policy of Ticketmaster. Live Nation shall maintain such policy in effect on full force and effect, and continue to honor 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 officersobligations thereunder.
(d) The provisions of this Section 5.04 are 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 (iiiii) 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 an intended third party beneficiary.
Appears in 1 contract
Samples: Merger Agreement (Ticketmaster Entertainment, Inc.)
Indemnification, Exculpation and Insurance. (a) The Each of Parent, Sub and the Surviving Corporation shall indemnify agrees that it will indemnify, defend and hold harmless the current or former directors or officers of the Company and its Subsidiaries (including by providing all rights to indemnification, advancement of expenses and exculpation from liabilities liabilities) for acts or omissions occurring at or prior to the Effective Time those classes to the full extent now existing in favor of such persons currently entitled to indemnification from the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) as provided in their the respective certificates of incorporation or by-laws bylaws (or comparable organizational documents) of the Company and each of its Subsidiaries. Any and all indemnification or other agreements of the Company or any of its Subsidiaries as in effect on the date of this Agreement shall be assumed by the Surviving Corporation in the Merger shall assumeMerger, without further action, as of the Effective Time any indemnification agreements of the Company in effect as of the date hereof. The Surviving Corporation shall 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 at the Effective Time, directors and officers of shall survive the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to indemnification under the Surviving Corporation’s or any of its subsidiaries’ certificate of incorporation Merger and by-laws (or comparable organizational documents), as the same may be amended from time to time shall continue in full force and effect in accordance with their terms and applicable lawterms, and to all other indemnity rights Parent shall, and protections as are afforded to other directors and officers of shall cause the Surviving Corporation or any of its subsidiariesto, comply with and honor the obligations under each such agreement.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of 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 will to be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.045.06.
(c) For Prior to the Closing, Parent shall obtain as of the Effective Time a “tail” insurance policy with a claims period of six years after from the Effective Time, the Surviving Corporation shall maintain in effect the Company’s current Time with respect to directors’ and officers’ liability insurance covering acts or omissions occurring prior to the Effective Time with respect to those persons who are 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 amount that are no less favorable than those of such policy of the Company in effect on the date hereofof this Agreement, which insurance shall, prior to the Closing, be in effect and prepaid for such six-year period; provided, that in the event Parent does not obtain such insurance by the fifteenth business day prior to the Closing Date (the “Insurance Deadline”), Parent shall notify the Company that is has not obtained such insurance and the Company shall have the right to obtain such insurance prior to the effective Time; provided that in no event shall Parent or the Surviving Corporation may substitute therefor policies be required to pay, and in no event shall the Company pay, premiums for insurance under this Section 5.06(c) which in the aggregate exceed 250% of the Surviving Corporation or its subsidiaries containing terms annual premiums paid by the Company as of the Effective Time for such purpose; 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 250% amount. 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 until the Insurance Deadline, and amount no less favorable the Company shall provide reasonable cooperation and information requested by Parent with respect to the procurement of such directors or officersrunoff coverage.
(d) The provisions of this Section 5.04 are 5.06 (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. Each indemnified party is an intended third party beneficiary.
Appears in 1 contract
Samples: Merger Agreement (Caterpillar Inc)
Indemnification, Exculpation and Insurance. (a) Prior to the Closing Date, the Seller shall at its own cost purchase “tail” coverage for the six (6) year period following the Closing under the directors’ and officers’ liability insurance policies of the Seller and Education Entities to be in place prior to the Closing Date (the “D&O Tail”) with respect to the matters set forth in this Section 5.08 that provides coverage no less favorable in scope and amount to the coverage provided by such policies prior to the Closing Date. The Surviving Corporation Seller shall indemnify provide the Purchaser and hold harmless its Representatives an opportunity to review and comment upon the terms of the D&O Tail a reasonable time prior to the Closing Date.
(b) The Purchaser Group agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes Closing now existing in favor of persons currently entitled to indemnification from the Company and current or former directors, officers or employees of the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) Education Entities as provided in their respective certificates Organizational Documents and any indemnification or other similar Contracts of incorporation or by-laws any Education Entity, in each case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms (or comparable organizational documents) it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and the Surviving Corporation Purchaser Group shall cause the Education 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 Effective Time in any manner that would adversely affect the Merger rights of the Education Indemnified Parties thereunder, unless any such amendment, repeal or modification is required by applicable Law. Without limiting the foregoing, from and after the Closing, the Purchaser Group agrees that it shall assumeindemnify and hold harmless each individual who is a current or former director, without further actionofficer or employee of any Education Entity and each individual who becomes, prior to the Closing, a director, officer or employee of any Education Entity or who is, as of the Effective Time date of this Agreement, or who thereafter commences prior to the Closing, serving at the request of any indemnification agreements Education Entity as a director, officer or employee of another Person (the Company “Education Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in effect connection with any Claim, whether civil, criminal, administrative or investigative (including with respect to matters existing or occurring at or prior to the Closing (including this Agreement and the transactions and actions contemplated by this Agreement)), arising out of or pertaining to the fact that the Education Indemnified Party is or was a director, officer or employee of any Education Entity or is or was serving at the request of any Education Entity as a director, officer or employee of another Person, whether asserted or claimed prior to, at or after the date hereofClosing, to the fullest extent permitted under applicable Law. The Surviving Corporation shall advance expenses to In the event of any such person promptly upon receipt of an undertaking from such person that such expenses Claim, (i) each Education Indemnified Party shall be repaid should entitled to advancement of expenses incurred in the defense of any such Claim from the Purchaser Group within ten (10) Business Days after receipt by the Purchaser from the Education Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by applicable Law or the applicable Education Entity’s Organizational Documents, to repay such advances if it be is ultimately determined by final adjudication that such person is not entitled to indemnificationindemnification and (ii) the Purchaser Group shall cooperate in good faith in the defense of any such matter. In additionAny determination required to be made with respect to whether any Education Indemnified Party’s conduct complies with an applicable standard under applicable Law, from and after the Effective Time, directors and officers applicable Organizational Documents of the Company who become directors any Education Entity or officers of the Surviving Corporation or any of its subsidiaries will be entitled to applicable indemnification under the Surviving Corporation’s or any of its subsidiaries’ certificate of incorporation and by-laws (or comparable organizational documents)agreements, as the same case may be, shall be amended from time made by independent legal counsel to time in accordance with their terms be agreed upon by the Education Indemnified Party 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 subsidiariesPurchaser acting reasonably.
(bc) In the event that the Surviving Corporation Purchaser Group or any Education Entity or any of its their respective successors or assigns (i) consolidates with or merges into any other person Person and is not 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 substantially all of its properties and assets to any personPerson, then, and in each such case, the Purchaser Group or such Education Entity, as applicable, shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation Purchaser Group or such Education Entity, as applicable, assume the obligations covenants and agreements set forth in this Section 5.04.
(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 officers5.08.
(d) The provisions of this Section 5.04 are 5.08 (i) shall survive the Closing indefinitely, (ii) are intended to be for the benefit of, and will shall be enforceable by, each indemnified partyor insured party (including the Education Indemnified Parties), his or her heirs and his or her representatives representatives, all of which, are express third-party beneficiaries of this Section 5.08 and (iiiii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person Person may have by contract or otherwise. Each indemnified party is an intended third party beneficiary.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Advisory Board Co)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Parent and hold harmless Sub agree that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the current or former directors, officers, employees and agents of the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable similar organizational documents) shall be assumed and performed by the Surviving Corporation in the Merger shall assumeCorporation, without further action, as of at the Effective Time and shall survive the Merger and shall continue in full force and effect in accordance with their terms. Parent and Sub agree that any existing indemnification agreements between the Company and any current or former director, officer, employee or agent of the Company in effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will shall be entitled to indemnification under assumed and performed by the Surviving Corporation’s or , without any of its subsidiaries’ certificate of incorporation further action, at the Effective Time and by-laws (or comparable organizational documents), as shall survive the same may be amended from time to time Merger and continue in full force and effect 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 subsidiariesterms.
(b) In the event that Parent, 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, Parent shall cause proper provision will to be made so that the successors successor and assigns assign of Parent or the Surviving Corporation assume assumes the obligations set forth in this Section 5.045.07, and in such event all references to the Surviving Corporation in this Section 5.07 shall be deemed a reference to such successor and assign.
(c) For six years after the Effective Time, the Surviving Corporation Parent shall maintain in effect the Company’s '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 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 amounts no less favorable in any material respect to such directors and officers than those of such policy as in effect on the date hereofof this Agreement; provided that the Surviving Corporation Parent may substitute therefor policies of a reputable insurance company the Surviving Corporation or its subsidiaries containing material terms with respect to of which, including coverage and amount amount, are no less favorable in any material respect to such directors or officersand officers than the insurance coverage otherwise required under this Section 5.07(c); provided, however, that in no event shall Parent be required to pay aggregate premiums for insurance under this Section 5.07(c) in excess of 225% of the amount of the aggregate premiums paid by the Company for fiscal year 2001 for such purpose (which fiscal year 2001 premiums are hereby represented and warranted by the Company to be $151,750); provided that Parent shall nevertheless be obligated to provide such coverage as may be obtained for such 225% amount.
(d) The provisions of this Section 5.04 5.07 shall survive consummation of the Merger and 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) representatives. Parent shall cause the Surviving Corporation to comply with its obligations set forth 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 beneficiarythis Section 5.07.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation From and after the Closing Date, Purchaser shall indemnify cause the Company and the Subsidiaries to indemnify, defend and hold harmless harmless, to the fullest extent permitted under applicable Law, including contractual indemnification and under the respective certificate of incorporation, bylaws or comparable organizational documents of the Company or such Subsidiary in effect on the date hereof, the individuals who on or prior to the Closing Date were directors, officers or employees of the Company or any of the Subsidiaries (collectively, the “Indemnitees”) with respect to all acts or omissions by them in their capacities as such or as trustees or fiduciaries of any plan for the benefit of employees of the Company or any of the Subsidiaries or taken at the request of the Company or any of the Subsidiaries at any time prior to the Closing Date. 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 those classes Closing Date as provided in the respective certificate of persons currently entitled incorporation or bylaws or comparable organizational documents of the Company or any of the Subsidiaries as now in effect, and any indemnification agreements or arrangements of the Company or any of the Subsidiaries shall survive the Closing Date and shall continue in full force and effect in accordance with their terms. Purchaser shall not permit the Company or any Subsidiary to indemnification from amend, or otherwise modify such rights or agreements in any manner that would adversely affect the rights of the Indemnitees, unless such modification is required by Law. In addition, Purchaser shall cause the Company and the Company Subsidiary Subsidiaries to pay any and all legal and other fees, costs and expenses (including the cost of investigation and preparation) of any other subsidiary formed after Indemnitee under this Section 8.7, as incurred and to the date hereof in fullest extent permitted under applicable Law and the ordinary course respective certificate of business or with the consent of Parent) as provided in their respective certificates of incorporation or by-laws (incorporation, bylaws or comparable organizational documents) and the Surviving Corporation in the Merger shall assume, without further action, as of the Effective Time any indemnification agreements documents of the Company or such Subsidiary in effect as on the date hereof, provided, however, that the person to whom expenses are advanced provides an undertaking to repay such advances to the extent required by applicable Law and the applicable certificate of incorporation, bylaws or comparable organizational documents of the Company or such Subsidiary in effect on the date hereof. The Surviving Corporation Purchaser shall advance expenses pay or cause to any such person promptly upon receipt of an undertaking from such person be paid all fees, costs and expenses, including reasonable attorneys’ fees, 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 incurred by an Indemnitee 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 subsidiariesenforcing this Section 8.7.
(b) In For the event that six-year period commencing immediately following the Surviving Corporation Closing Date, Purchaser shall cause the Company 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets Subsidiaries to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.04.
(c) For six years after the Effective Time, the Surviving Corporation shall maintain in effect the Company’s their current respective directors’ and officers’ liability insurance insurance, if any, covering acts or omissions occurring prior to the Effective Time Closing Date with respect to those persons who are currently covered immediately prior to the Closing Date by the Company’s or the Subsidiaries’ directors’ and officers’ liability insurance policy on terms with respect to such coverage and amount no less favorable to the Company’s or the Subsidiaries’ directors and officers currently covered by such insurance than those of such policy in effect on the date hereof; provided provided, however, that Purchaser may cause the Surviving Corporation may Company or the Subsidiaries, as applicable, to substitute therefor policies of a reputable insurance company the Surviving Corporation or its subsidiaries containing terms with respect to of which, including coverage and amount amount, are no less favorable to such directors and officers than the insurance coverage otherwise required under this Section 8.7(b); and provided, further, that Purchaser may elect to cause the Company or the Subsidiaries to purchase at or after the Closing Date, in lieu of the foregoing insurance, a directors’ and officers’ liability insurance “tail” or “runoff” insurance program (the “Tail Policy”) to be in effect until the end of such six-year period (and for so long thereafter as any claim is being adjudicated thereunder) with respect to acts or omissions occurring prior to the Closing Date (such coverage to be on terms and conditions and for an amount no less favorable to the Company’s or the Subsidiaries’ directors and officers currently covered by such insurance than those of such policy in effect on the date hereof).
(dc) The provisions of this Section 5.04 are 8.7: (i) are intended to be for the benefit of, and will shall be enforceable by, each indemnified partyIndemnitee, his or her heirs and his or her representatives and 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 Contract or otherwise. Each indemnified party ; and (iii) 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 consent of the affected Indemnitee.
(d) In the event that Purchaser or any of its successors or assigns (i) consolidates with or merges into any other Person and is an intended third party beneficiarynot 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, proper provision shall be made so that the successors and assigns of Purchaser shall assume all of the obligations of Purchaser set forth in this Section 8.7.
(e) Notwithstanding anything herein to the contrary, if any claim (whether arising before, at or after the Closing) is made against any Person covered by the Tail Policy on or prior to the sixth anniversary of the Closing, the provisions of this Section 8.7 shall continue in effect until the final disposition of such claim.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Parent and Buyer (on its own behalf and that of the Surviving Corporation shall indemnify Corporation) agree that all rights to indemnification (including the advancement of expenses) and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes (including with respect to the transactions contemplated by this Agreement) existing now or at the Effective Time in favor of persons currently entitled to indemnification from the current or former directors or officers of the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) as provided in their respective certificates its Articles of incorporation or byIncorporation and its By-laws (or comparable organizational documentseach as in effect on the date hereof) and shall be assumed by the Surviving Corporation in the Merger shall assumeMerger, without further action, as of the Effective Time any indemnification agreements of and shall survive the Company Merger and shall continue in full force and effect as of the date hereof. The Surviving Corporation shall 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 additionwithout amendment, from and after the Effective Time, directors and officers of the Company who become directors modification or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 repeal in accordance with their terms and applicable lawfor a period of not less than six years after the Effective Time; provided, however, that if any claims are asserted or made within such six-year period, all rights to indemnification (and to advancement of expenses) hereunder and thereunder in respect of any such claims shall continue, without diminution, until final disposition of all other indemnity rights and protections as are afforded to other directors and officers of the Surviving Corporation or any of its subsidiariessuch claims.
(b) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and is not 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 substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision will be made so that the successors successors, transferees and assigns of the Surviving Corporation or its assets shall assume the obligations set forth in this Section 5.047.06. In the event the Surviving Corporation transfers any material portion of its assets, in a single transaction or in a series of transactions, the Surviving Corporation shall, as an express condition thereof, either guarantee the indemnification obligations referred to in Section 7.06(a) hereof or take such other action to ensure 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 a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the Company’s current directorsprovide officers’ and officersdirectors’ liability insurance covering in respect of acts or omissions occurring at or prior to the Effective Time with respect to those persons who are Time, including but not limited to, the transactions contemplated by this Agreement, covering each person currently covered by the Company’s directorsofficers’ and officersdirectors’ liability insurance policy, or who becomes covered by such policy prior to the Effective Time, 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 satisfying its obligation under this Section 7.06(c), the Surviving Corporation shall not be obligated to pay premiums in excess of two hundred (200%) percent of the amount per annum the Company paid in its last full fiscal year (which the Company represents to be approximately $125,000); provided further, that the Surviving Corporation shall nevertheless be obligated to provide such coverage as may substitute therefor policies of the Surviving Corporation or its subsidiaries containing terms with respect to coverage and amount no less favorable to be obtained for such directors or officerstwo hundred (200%) percent amount.
(d) The provisions of this Section 5.04 7.06 are (i) for, and intended to be for for, the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her legal representatives and (ii) in addition to, and not in substitution for, or in lieu of, any other rights to indemnification or contribution that any such person Person may have by contract or otherwise. Each indemnified party is an intended third party beneficiary.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify JPFI ------------------------------------------ agrees to maintain in effect in accordance with their terms all rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes existing as of persons currently entitled to indemnification from the Company date of this Agreement in favor of the current or former directors or officers of RSI and the Company Subsidiary its subsidiaries (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parenttheir 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 their respective certificates of incorporation or 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 RSI or in effect as Section 7.13 of the date hereof. The Surviving Agreement and Plan of Merger dated February 2, 1996, among RSI, USF Acquisition Corporation shall 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 indemnificationand US Foodservice. In addition, from and after the Effective Time, directors and officers of the Company RSI who become directors or officers of the Surviving Corporation or any of its subsidiaries JPFI will be entitled to indemnification under the Surviving Corporation’s or any of its subsidiaries’ certificate of incorporation same indemnity rights and by-laws (or comparable organizational documents)protections, and directors' and officers' liability insurance, as the same may be amended are afforded 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 subsidiariesJPFI.
(b) In the event that the Surviving Corporation JPFI 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation JPFI assume the obligations set forth in this Section 5.045.7.
(c) For JPFI shall use its best efforts to provide to RSI's current directors and officers, 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 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 the Surviving Corporation may substitute therefor policies in no event shall JPFI be required to expend more than 200% of the Surviving Corporation or its subsidiaries containing terms with respect current amount expended by RSI to coverage and amount no less favorable to maintain such directors or officerscoverage.
(d) The provisions of this Section 5.04 are 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. Each indemnified party is an intended third party beneficiary.
Appears in 1 contract
Samples: Merger Agreement (Rykoff Sexton Inc)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify All rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes and rights to advancement of persons currently entitled to indemnification from the Company and the Company Subsidiary (and any other subsidiary formed after expenses relating thereto existing as of the date hereof in favor of any person who is or prior to the ordinary course Effective Time becomes, or has been at any time prior to the date hereof, a director or officer of business the Company or with the consent any of Parentits 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 effect in accordance with their respective certificates terms. For a period of incorporation 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 by-laws (omissions occurring or comparable organizational documents) 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 amend, repeal or otherwise modify the Surviving Corporation Certificate of Incorporation or the bylaws of the Surviving Corporation in any manner that would adversely affect the Merger shall assumerights thereunder of any Indemnified Parties with respect to indemnification, without further action, as exculpation and limitation of liabilities of the Effective Time any indemnification agreements Indemnified Parties and advancement of the Company in effect as of the date hereof. The Surviving Corporation shall 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 additionexpenses.
(b) Without limiting Section 7.05(a), from and after the Effective Time, directors and officers in the event of any threatened or actual Action, whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, 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 who become directors or officers Company, any of the Surviving Corporation its Subsidiaries or any of its subsidiaries will be entitled their respective predecessors, Parent and the Surviving Corporation, jointly and severally, shall indemnify and hold harmless, as and to the fullest extent permitted by Law, each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including payment of reasonable attorney’s fees and expenses in advance of the final disposition of any Action to each Indemnified Party 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 Action. Any determination of entitlement to indemnification under the preceding sentences shall be made by an independent counsel selected jointly by the Surviving Corporation and such Indemnified Party. Each of Parent, the Surviving Corporation and the Indemnified Party shall cooperate in the defense of any matter for which such Indemnified Party has validly sought indemnification under such indemnification agreement; provided that no Indemnified Person will be liable for any settlement of such matter effected without his or her prior written consent. Parent’s and the Surviving Corporation’s obligations under this Section 7.05(b) shall continue in full force and effect for a period of six (6) years from the Effective Time; provided that all rights hereunder in respect of any Action asserted or any made within such period shall continue until the final disposition of its subsidiariessuch Action.
(c) For a period of six (6) years from the Effective Time, Parent shall maintain in effect the Company’s current directors’ certificate and officers’ liability insurance policies in respect of incorporation acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party on terms with respect to such coverage and by-laws (or comparable organizational documents), as amounts no less favorable in the same may be amended from time to time aggregate than those of such policies 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 effect on the date hereof; provided that neither Parent nor the Surviving Corporation shall be required to pay an aggregate annual premium for such insurance policies in excess of 300% of the annual premium paid by the Company for coverage for its last full fiscal year for such insurance (which amount the Company represents and warrants is set forth in Section 7.05(c) of the Company Disclosure Letter) (the “Maximum Premium”); provided, further that if the annual premiums of such insurance coverage exceed such amount, if and to the extent available commercially, Parent or the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; provided, further that Parent may substitute therefor policies of a reputable national insurance company (with comparable credit ratings to the Company’s existing carrier) the material terms of which, including with respect to coverage and amount, are no less favorable in any material respect to any Indemnified Party. Notwithstanding the foregoing, the Company (prior to the Merger Closing Date) may (after reasonable consultation with Parent), or at Parent’s written request prior to the Merger Closing Date will, or Parent or the Surviving Corporation upon the Effective Time may, obtain in lieu of its subsidiariesthe insurance contemplated by the preceding sentence a prepaid (or “tail”) directors’ and officers’ liability insurance policy in respect of acts or omissions occurring at or prior to the Effective Time for six (6) years from the Effective Time, covering each person who is covered by such policies on the date hereof on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date hereof; provided that the maximum premium for such tail insurance policy shall not be in excess of the Maximum Premium; provided, further that any such tail policy may not be amended, modified or canceled or revoked by the Company, Parent or the Surviving Corporation in any manner that is adverse to the beneficiaries.
(bd) 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all a majority of its properties and other assets to any person, or if Parent dissolves the Surviving Corporation, then, and in each such case, the Surviving Corporation and Parent, respectively, shall cause proper provision will to be made so that the applicable successors and assigns of the Surviving Corporation or transferees expressly assume the obligations set forth in this Section 5.047.05 unless assumed by operation of Law.
(ce) For six years From and after the Effective TimeTime (but not prior thereto), 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 7.05 are (i) intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs Indemnified Party and his or her representatives and (ii) heirs. The provisions of this Section 7.05 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 an intended third party beneficiary.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Parent agrees that, and shall cause the Surviving Corporation shall indemnify Company to assume the obligations associated with, all rights of the individuals who on or prior to the Effective Time were directors or officers of the Company or any of its Subsidiaries (collectively, the "Indemnitees") to indemnification and hold harmless 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 the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) as provided in their the respective certificates Certificate of incorporation Incorporation or by-laws Bylaws (or comparable organizational documents) and the Surviving Corporation in the Merger shall assume, without further action, as of the Effective Time Company or any of its Subsidiaries as now in effect, and any indemnification agreements or arrangements of the Company or any of its Subsidiaries shall survive the Merger and shall continue in full force and effect as 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 date hereof. The Indemnitees; provided, however, that the Surviving Corporation Company shall advance expenses have no obligation to any provide such person promptly upon receipt of an undertaking from such person indemnification to the extent that such expenses shall be repaid should it be is ultimately determined that such person indemnification is not entitled to indemnification. In additionprohibited under applicable Law.
(b) Parent, from and after the Effective Time, directors shall cause (i) the Certificate of Formation and officers 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 who become directors and (ii) the Certificate of Incorporation and Bylaws (or officers similar organizational documents) of each Subsidiary of the Surviving Corporation 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 any of its subsidiaries will be entitled to indemnification under otherwise modified in a manner that would adversely affect 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 thereunder of the Surviving Corporation or any of its subsidiaries.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.04Indemnitees.
(c) For six years the six-year period commencing immediately after the Effective Time, the Surviving Corporation Company shall maintain in effect the Company’s '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 '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 provided, however, that, if the Company's current directors' and officers' liability insurance expires, is terminated or is canceled, Parent shall, or shall cause the Surviving Corporation may substitute therefor policies of the Surviving Corporation Company to, obtain directors' and officers' liability insurance covering such acts or its subsidiaries containing 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 directors insurance than those of such policy in effect immediately prior to the date of such expiration, termination or officerscancellation; 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 for such coverage (or such coverage as is available for 150% of such annual premium). Alternatively, with 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, at a cost no greater than that set forth in the preceding sentence, that provides coverage identical in all material respects to the coverage described above.
(d) The provisions of this Section 5.04 are 3.3.3
(i) are intended to be for the benefit of, and will shall be enforceable by, each indemnified partyIndemnitee, 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 .
(e) In the event that the Surviving Company or any of its successors or assigns (i) consolidates with or merges into any other person and is an intended third party beneficiarynot the continuing or surviving company or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Company shall assume all of the obligations thereof set forth in this Section 3.3.3.
(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.
Appears in 1 contract
Samples: Merger Agreement (Tektronix Inc)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify All rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes existing in favor of persons currently entitled to indemnification from the current or former directors, officers or employees of the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) as provided in their respective certificates the Company's Articles of incorporation Incorporation or byBy-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 Merger shall assumeterms thereof, without further action, as of the Effective Time any Time, and such rights shall continue in full force and effort in accordance with their respective terms. Such rights, and the Surviving Corporation's and Parent's related obligations, shall apply in all respects to the current or former directors, officers and employees of each of its Subsidiaries as though such directors, officers and employees were entitled to indemnification agreements rights pursuant to the Company's Articles of the Company Incorporation or By-laws as in effect as of on the date hereof. The Surviving Corporation shall advance expenses hereof or pursuant 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 indemnificationagreements, as the case may be. In addition, from and after the Effective Time, directors and officers of the Company who become or remain directors or officers of the Surviving Corporation or any of its subsidiaries will Parent shall be entitled to 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 (including those provided by directors' and officers' liability insurance) as are afforded to other directors and officers of the Surviving Corporation or any of its subsidiaries.
(b) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into Parent. Notwithstanding any other person and is not 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 substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.04.
(c) For six years after the Effective Timehereof, 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 7.6(a) are (i) intended to be for the benefit of, and will 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 26 31 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.
(b) Parent shall, and shall cause the Surviving Corporation or 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 director or officer of its Subsidiaries prior to the Effective Time.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The 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 shall to, indemnify and hold harmless from liabilities for acts each present (as of the Effective Time) and former officer or omissions 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, 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, 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 those classes of persons currently entitled (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to indemnification from the same extent that the Company is required to indemnify the applicable Indemnified Party under applicable Law and the Company Subsidiary (Charter and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) Company Bylaws as provided in their respective certificates of incorporation or 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 in effect as of at the date hereof. The In the event of any such Action, each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation shall to the same extent that the Company is required to advance expenses to any such person promptly upon receipt of an undertaking from such person that such expenses shall be repaid should under applicable Law and the Company Charter and Company Bylaws as at the date hereof; provided, that any Person to whom expenses are advanced provides an affirmation or undertaking, if and only to the extent required by the Washington Act or the Company Charter or Company Bylaws, to repay such advances if it be is ultimately determined that such person Person is not entitled to indemnification. In addition, from and after the Effective Time, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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.
(b) In the event that the Surviving Corporation or any The articles of its successors or assigns (i) consolidates with or merges into any other person incorporation and is not 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 substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns bylaws of the Surviving Corporation assume shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of the obligations Indemnified Parties with respect to matters existing or occurring at or prior to the Effective Time than are presently set forth in this Section 5.04the Company Charter and Company Bylaws, 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 the rights thereunder of any such Indemnified Parties.
(c) For a period of six (6) years after from the Effective Time, the Surviving Corporation Parent shall maintain either cause to be maintained in effect the Company’s current policies of directors’ and officers’ liability insurance covering acts and fiduciary liability insurance maintained by the Company and its Subsidiaries or omissions occurring 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 containing terms and conditions that are not less advantageous in the aggregate 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 300% of the last annual premium paid by the Company prior to the date hereof in respect of the coverage required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount; provided further, that if the Surviving Corporation purchases a “tail policy” and the coverage thereunder costs more than 300% of such last annual premium, the Surviving Corporation shall purchase the maximum amount of coverage that can be obtained 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 Time, a six-year prepaid “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 those persons who are currently covered by 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 on terms with respect to policy; and provided, further, that in such case, the Company may purchase the maximum amount of coverage and amount no less favorable than those that can be obtained for 300% of such last annual premium. If such tail prepaid policy has been obtained by the Company prior to the Effective Time, Parent shall cause such policy to be maintained in effect on the date hereof; provided that full force and effect, for its full term, and cause all obligations thereunder to be honored by 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 officersCorporation.
(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 5.04 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 (i) intended to be for the benefit ofbenefit, and will shall be enforceable by, each indemnified party, his or her of the Indemnified Parties and their respective 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 beneficiarylegal representatives.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify All rights to indemnification and hold harmless exculpation from liabilities to the fullest extent possible for acts or omissions occurring at or prior to the Effective Time those classes (including, without limitation, acts in connection with the transactions contemplated by this Agreement) existing in favor of persons currently entitled to indemnification from the current or former directors or officers of the Company and the Company Subsidiary (and any other subsidiary formed after or each of its Subsidiaries as permitted under Pennsylvania Law as in effect on the date hereof in the ordinary course of business or with the consent of Parent) and as provided in their respective articles or certificates of incorporation or by-laws bylaws (or comparable organizational documents) will be assumed by ACIA and ACIA will be directly responsible for such indemnification (including the Surviving Corporation in advancement by ACIA of expenses as incurred by an Indemnified Person to the Merger shall assumefullest extent permitted under Pennsylvania Law), without further action, as of the Effective Time any and such indemnification agreements of the Company will continue indefinitely in effect as of the date hereof. The Surviving Corporation shall 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 indemnificationfull force and effect. In addition, from and after the Effective Time, directors and officers of the Company who become or remain directors or officers of the Surviving Corporation or any of its subsidiaries ACIA will be entitled to 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 (including those provided by directors' and officers' liability insurance) as are afforded to other directors and officers of ACIA. If the Surviving Corporation or any of its subsidiaries.
(b) In the event that the Surviving Corporation or any of its successors or assigns ACIA (i) consolidates shall consolidate with or merges merge into any other person corporation or entity and is shall 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 shall transfer all or substantially all of its properties and assets asses to any personindividual, then, and corporation or other entity then in each such case, proper provision will provisions shall be made so that the successors and assigns assignees of the Surviving Corporation ACIA shall assume all of the obligations set forth in this Section 5.04.
(c) For six years after the Effective Time5.5. Notwithstanding any other provision hereof, 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 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. Each indemnified party is an intended third party beneficiary.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Parent agrees that all of the Company's obligations with respect to rights to indemnification, advancement of expenses and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the current or former directors or officers of the Company as provided in the Company Certificate, the Company By-laws or any indemnification agreement between such directors or officers and the Company Subsidiary (and any other subsidiary formed after in each case, as in effect on the date hereof in the ordinary course of business or with the consent of Parenthereof) as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and shall be assumed by the Surviving Corporation in the Merger shall assumeMerger, without further action, as of the Effective Time any indemnification agreements of and shall survive the Company Merger and shall continue in full force and effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 lawfor not less than six years, and to all other indemnity rights and protections as are afforded to other directors and officers of Parent shall cause the Surviving Corporation to fulfill such indemnification obligations. Without limiting the obligations of Parent and the Surviving Corporation pursuant to the foregoing sentence, Parent will cause the Surviving Corporation to reimburse each current director of the Company for such person's reasonable expenses (including legal fees and expenses) incurred in connection with the investigation and defense of any claim arising out of or any related to the transactions contemplated hereby or by the Transaction Agreements to the extent (i) such fees and expenses are not paid pursuant to the Company's insurance coverage or statutory indemnification obligations within 30 days after the receipt by the Surviving Corporation of its subsidiariesan invoice therefor and (ii) it is permitted by Delaware law for a party to reimburse another for such expenses (as opposed to the more limiting provisions of Section 145 of the DGCL applicable to the indemnification of directors by a corporation). If such insurance coverage or statutory indemnification is paid to such person after reimbursement is made pursuant to this paragraph 6.05(a), the director receiving such reimbursement shall promptly repay the Company therefor to the extent payment therefor has been made to the director under such insurance coverage or statutory indemnification.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, Parent shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation shall expressly assume the obligations set forth in this Section 5.046.
(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 1 contract
Samples: Agreement and Plan of Split Off and Merger (Inverness Medical Technology Inc/De)
Indemnification, Exculpation and Insurance. (a) The From and after the Closing Date, Parent shall, and shall cause the Surviving Corporation shall indemnify to, indemnify, defend and hold harmless harmless, to the fullest extent permitted under applicable Law, the individuals who on or prior to the Closing Date were directors, officers or employees of the Company or any of its Subsidiaries (collectively, the "Indemnitees") with respect to all acts or omissions by them in their capacities as such or taken at the request of the Company or any of its Subsidiaries at any time prior to the Closing Date. Parent 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 those classes of persons currently entitled to indemnification from the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) Closing Date as provided in their the respective certificates certificate of incorporation or by-laws (or comparable organizational documents) documents of 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 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. In addition, Parent shall, or shall cause the Surviving Corporation in the Merger shall assumeto, without further actionpay or reimburse any expenses of any Indemnitee under this Section 8.7, as of incurred to the Effective Time any indemnification agreements of fullest extent permitted under applicable Law, provided that the Company in effect as of the date hereof. The Surviving Corporation shall advance person to whom expenses to any such person promptly upon receipt of are advanced provides an undertaking from to repay such person that such expenses shall be repaid should it be ultimately determined that such person is not entitled advances to indemnification. In additionthe extent required by applicable Law.
(b) Parent, from and after the Effective TimeClosing Date, directors and officers of shall cause (i) the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to indemnification under the Surviving Corporation’s or any of its subsidiaries’ certificate of incorporation and by-laws (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 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, officers, employees and agents which provisions in each case shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees.
(c) The Indemnitee shall have the right (but not the obligation) to control the defense of, including the investigation of, any litigation, claim or proceeding (each, a "Claim") relating to any acts or omissions covered under this Section 8.7 with counsel selected by the Indemnitee; provided, however, that (i) Parent and the Surviving Corporation shall be permitted to participate in the defense of such Claim at their own expense and (ii) Parent shall not be liable for any settlement effected without its written consent, which consent shall not be unreasonably withheld or delayed.
(d) In the event any Claim is asserted or made, any determination required to be made with respect to whether an Indemnitee's conduct complies with the standards set forth under applicable Law, the applicable organizational documents of the Surviving Corporation, Parent or any of its Subsidiaries or any indemnification agreements or arrangements of the Surviving Corporation, Parent or any of its Subsidiaries, as the same case may be, shall be made by independent legal counsel selected by such Indemnitee.
(e) Each of Parent 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 amended reasonably requested in connection therewith.
(f) The Surviving Corporation shall provide or maintain in effect for six (6) years from time to time in accordance with their terms the Effective Time, through the purchase of "run-off" coverage or otherwise, directors' and applicable law, officers' and to all other indemnity rights corporate liability insurance covering those individuals who are covered by the directors' and protections as are afforded to other officers' and corporate liability insurance policy or policies provided for directors and officers of the Surviving Corporation or any Company and its Subsidiaries as of the date hereof (the "Existing Policy") on terms (other than with respect to minimum aggregate limits of liability for directors' and officers' and corporate liability insurance coverage) comparable in all respects to the 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 subsidiariesSubsidiaries 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.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.04.
(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.
(dg) The provisions of this Section 5.04 are 8.7: (i) are intended to be for the benefit of, and will shall be enforceable by, each indemnified partyIndemnitee, his or her heirs and his or her representatives 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 Contract or otherwise. Each indemnified party .
(h) In the event that Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is an intended 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, proper provision shall be made so that the successors and assigns of Parent shall assume all of the obligations thereof set forth in this Section 8.7.
(i) The obligations of Parent and the Surviving Corporation 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 consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 8.7 applies shall be third party beneficiarybeneficiaries of this Section 8.7).
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify FNF agrees to maintain in effect in accordance with their terms all rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the Company current or former directors or officers of ANFI and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its Subsidiaries as provided in their respective certificates articles of incorporation or 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 in effect as of the date hereof. The Surviving Corporation shall 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 indemnificationANFI. In addition, from and after the Effective Time, directors and officers of the Company ANFI who become directors or officers of the Surviving Corporation or any of its subsidiaries FNF will be entitled to 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 subsidiariesFNF.
(b) In the event that the Surviving Corporation FNF 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) except for any disposition of assets by the Surviving Corporation as required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation FNF assume the obligations set forth in this Section 5.04Section.
(c) For six years after Immediately prior to the Effective TimeClosing, the Surviving Corporation ANFI shall maintain in effect the Company’s current directors’ purchase, from an insurer or insurers chosen by ANFI, one or more single payment, run-off policies of directors and officers’ 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 ANFI'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 ANFI which policies are described on Section 4.17 of the ANFI 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; provided, however, prior to purchasing such insurance, ANFI shall have consulted with FNF to determine whether FNF can obtain such coverage on more favorable terms. If such coverage is unavailable, for six years after the Effective Time, FNF shall provide to ANFI'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 ANFI's directors' and officers' liability insurance policies with insurance companies who are rated at least as highly as the insurance companies who currently provide ANFI's directors' and officers' liability insurance as described on Section 4.17 of the ANFI Disclosure Schedule and on terms with respect to such coverage and amount no less favorable than those of such policy in effect described on the date hereof; provided that the Surviving Corporation may substitute therefor policies Section 4.17 of the Surviving Corporation or its subsidiaries containing terms with respect to coverage and amount no less favorable to such directors or officersANFI Disclosure Schedule.
(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 1 contract
Samples: Merger Agreement (Anfi Inc)
Indemnification, Exculpation and Insurance. (a) The Zac acknowledges and agrees that the Surviving Corporation shall indemnify by operation of law assume the obligations with respect to all rights to indemnification and hold harmless exculpation from liabilities liabilities, including advancement of expenses, for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the current or former directors, officers, employees or agents of the Company or any of its subsidiaries as provided in the Company’s or any of its subsidiaries’ articles of incorporation, bylaws or any indemnification Contract between such directors, officers, employees or agents and the Company Subsidiary or any of its subsidiaries (and any other subsidiary formed after in each case, as in effect on the date hereof in the ordinary course of business or with the consent of Parent) as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and the Surviving Corporation in the Merger shall assumethis Agreement), without further action, as of the Effective Time any indemnification agreements of and such obligations shall survive the Company Merger and shall continue in full force and effect as of the date hereof. The Surviving Corporation shall 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, directors and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will be entitled to 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 for a period of not less than six years from the Effective Time and applicable law, and that all rights to all other indemnity rights and protections as are afforded to other directors and officers indemnification in respect of the Surviving Corporation any action pending or asserted or any claim made within such period shall continue until the disposition of its subsidiariessuch 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 Person and is not 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 substantially all of its properties and other assets to any personPerson, then, and in each such case, the Surviving Corporation shall cause proper provision will to be made so that the successors and assigns of the Surviving Corporation shall expressly assume the obligations set forth in this Section 5.045.04 for a period of not less than six years from the Effective Time.
(c) For six years after the Effective Time, the Surviving Corporation shall maintain in effect (directly or indirectly through the Company’s current existing insurance programs) in effect directors’ and officers’ liability insurance covering in respect of acts or omissions occurring at or prior to the Effective Time with respect to those persons who are Time, covering each person currently covered by the Company’s directors’ and officers’ liability insurance policy maintained by the Company or its subsidiaries on terms with respect to such coverage and amount no less favorable than those of such policy in effect on amounts comparable to the date hereofinsurance 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 or shall first use its subsidiaries containing terms with respect 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 no less favorable 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 directors or officersmaximum amount.
(d) The provisions of this Section 5.04 are (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 representatives, and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person Person may have by contract Contract or otherwise. Each It is expressly agreed that the indemnified party is an intended parties shall be third party beneficiarybeneficiaries of this Section 5.04.
Appears in 1 contract
Samples: Merger Agreement (Zones Inc)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall Parent agrees to indemnify and hold harmless 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 the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its subsidiaries as provided in their respective certificates of incorporation or 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 in effect as of the date hereof). The Surviving Corporation shall Parent also agrees 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, directors and officers of the Company who become directors or officers of the Surviving Corporation Parent or any of its subsidiaries will be entitled to indemnification under the Surviving Corporation’s Parent's or any of its subsidiaries’ ' certificate of incorporation and by-laws (or comparable organizational documents)laws, 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 Parent or any of its subsidiaries.
(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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.045.03.
(c) For six years after the Effective Time, the Surviving Corporation Parent shall maintain in effect the Company’s '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 '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 Parent may substitute therefor policies of the Surviving Corporation 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 5.04 are 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. Each indemnified party is an intended third party beneficiary.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sterling Commerce Inc)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify JPFI agrees to maintain in effect in accordance with their terms all rights to indemnification and hold harmless exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes existing as of persons currently entitled to indemnification from the Company date of this Agreement in favor of the current or former directors or officers of RSI and the Company Subsidiary its subsidiaries (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parenttheir 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 their respective certificates of incorporation or 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 RSI or in effect as Section 7.13 of the date hereof. The Surviving Agreement and Plan of Merger dated February 2, 1996, among RSI, USF Acquisition Corporation shall 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 indemnificationand US Foodservice. In addition, from and after the Effective Time, directors and officers of the Company RSI who become directors or officers of the Surviving Corporation or any of its subsidiaries JPFI will be entitled to indemnification under the Surviving Corporation’s or any of its subsidiaries’ certificate of incorporation same indemnity rights and by-laws (or comparable organizational documents)protections, and directors' and officers' liability insurance, as the same may be amended are afforded 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 subsidiariesJPFI.
(b) In the event that the Surviving Corporation JPFI 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) except for any disposition of assets by the Surviving Corporation required by applicable law in connection with the Merger, transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation JPFI assume the obligations set forth in this Section 5.045.7.
(c) For JPFI shall use its best efforts to provide to RSI's current directors and officers, 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 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 the Surviving Corporation may substitute therefor policies in no event shall JPFI be required to expend more than 200% of the Surviving Corporation or its subsidiaries containing terms with respect current amount expended by RSI to coverage and amount no less favorable to maintain such directors or officerscoverage.
(d) The provisions of this Section 5.04 are 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. Each indemnified party is an intended third party beneficiary.
Appears in 1 contract
Samples: Merger Agreement (Rykoff Sexton Inc)
Indemnification, Exculpation and Insurance. (a) The Surviving Corporation shall indemnify Parent and hold harmless Merger Sub agree that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time those classes now existing in favor of persons currently entitled to indemnification from the current or former directors or officers of the Company and the Company Subsidiary (and any other subsidiary formed after the date hereof in the ordinary course of business or with the consent of Parent) its Subsidiaries as provided in their respective certificates of incorporation or by-laws (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 shall assumeMerger, without further action, as of at the Effective Time any indemnification agreements of Time, and shall survive the Company Merger and shall continue in full force and effect as of the date hereofin accordance with their terms. The Surviving Corporation shall 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 From and after the Effective Time, directors Parent and officers of the Company who become directors or officers of the Surviving Corporation or any of its subsidiaries will shall be entitled jointly and severally liable to pay and perform in a timely manner such 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 subsidiariesobligations.
(b) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and is not 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 substantially all of 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 will to be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 5.046.5.
(c) For six years after From the Offer Closing through the sixth anniversary of the Effective TimeTime (such period, the “Tail Period”), Parent shall, or shall cause the Surviving Corporation shall to, 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 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 amount amounts no less favorable than those of such policy in effect on the date hereofof this Agreement; provided further 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 Surviving Corporation Company to obtain, on or its subsidiaries containing prior to the Closing Date, prepaid (or “tail”) directors’ and officers’ liability insurance policy at Parent’s expense, in each case, the material terms with respect to of which, including coverage and amount 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 officersthe 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) The provisions of this Section 5.04 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 Person may have by contract Contract or otherwise. Each indemnified party is an intended third party beneficiary.
Appears in 1 contract
Samples: Merger Agreement (ARGON ST, Inc.)
