Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification and (ii) the Surviving Company shall cooperate in the defense of any such matter. (b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder. (c) In the event that Parent, 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, Parent or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.04. (d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder. (e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04. (f) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 3 contracts
Samples: Merger Agreement (Entegris Inc), Merger Agreement (CMC Materials, Inc.), Merger Agreement (CMC Materials, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its the Company Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements each of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers Parent and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (ix) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL Cayman Companies Law or the Articles of Association or the Memorandum of Association of the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (iiy) the Surviving Company and such Company Indemnified Party shall cooperate with each other in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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 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, Parent or the Surviving Company, as applicable, Company shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, Company assume the obligations set forth in this Section 6.046.05.
(dc) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as For a period of or after the Effective Time to, purchase a six (6) -year prepaid “tail” years from and after the Effective Time, the Surviving Company shall either cause to be maintained in effect the policies of directors’ and officers’ liability insurance policy and fiduciary liability insurance policy maintained by the Company or its Subsidiaries as of the Closing Date (true and correct copies of which that are in effect as of the date of this Agreement have been made available to Parent prior to the date of this Agreement) or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the CompanyCompany in either case, such tail to provide coverage in an amount of not less than the coverage existing coverage as of the Closing Date and to have having other terms not less favorable substantially equivalent to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company as of the Closing Date with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided Time, except that in no event shall the cost of any Surviving Company be required to pay with respect to such Pre-Paid Tail insurance policies in respect of any one policy year exceed 300more than 150% of the aggregate annual premium most recently paid by the Company prior to the date Closing Date (which amount is set forth in Section 5.01(k) of this Agreement the Company Disclosure Letter) (the “Maximum Amount”); provided, further that and if the total cost Surviving Company is unable to obtain the insurance required by this Section 6.05 it shall obtain as much comparable insurance as possible for maintaining the years within such Pre-Paid Tail exceeds six (6) year period for an aggregate annual premium equal to the Maximum Amount, then in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date Parent may, at its option (following reasonable consultation with the Company), purchase a “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for a period of six (6) years from and after the Effective Time for the Company (after prior consultation and its current and former directors and officers who are covered by the directors’ and officers’ and fiduciary liability insurance coverage maintained by the Company as of the Closing Date, such tail to provide coverage in an amount not less than such coverage and to have other terms substantially equivalent to the directors’ and officers’ liability insurance and fiduciary liability insurance coverage maintained by the Company as of the Closing Date with Parent) may obtain, respect to claims arising from facts or following Closing, Parent events that occurred on or before the Effective Time; provided that in no event shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to of any such tail policy exceed the Maximum Amount. In the event the Company purchases such tail coverage, the Surviving Company shall cease to have any obligations under the first sentence of this Section 6.05(c). The Surviving Company shall maintain such policies in full force and effecteffect during the period of insurance, and continue to honor the its obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 6.05 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to insurance indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (New Residential Investment Corp.), Merger Agreement (Home Loan Servicing Solutions, Ltd.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will Xxxxxxxxx shall indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company Janus or any of its Subsidiaries subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company Janus or any of its Subsidiaries subsidiaries as a director or officer of another Person person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated herebyTransactions)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company Janus or any of its Subsidiaries subsidiaries or is or was serving at the request of the Company Janus or any of its Subsidiaries subsidiaries as a director or officer of another Personperson or in respect of any acts or omissions in their capacities as such directors of officers occurring prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the same extent as such Indemnified Parties are indemnified as of the date of this Agreement by Janus pursuant to the Janus Certificate of Incorporation, the Bylaws of Janus or the governing or organizational documents of any subsidiary of Janus and any indemnification agreements in existence as of the date of this Agreement. In the event of any such Actionclaim, action, suit or proceeding, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days Corporation or Xxxxxxxxx to the same extent as such Indemnified Parties are entitled to advance of receipt expenses as of the date of this Agreement by Janus pursuant to the Surviving Company from Janus Certificate of Incorporation, the Company Indemnified Party Bylaws of a request thereforJanus or the governing or organizational documents of any subsidiary of Janus; provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL DGCL, the Janus Certificate of Incorporation or the Surviving Company’s certificate Bylaws of incorporation or by-lawsJanus, and any indemnification agreements in existence as of the date of this Agreement, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (ii) the Surviving Company Xxxxxxxxx shall, and shall cause its subsidiaries to, cooperate in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) . In the event that Parent, Xxxxxxxxx or the Surviving Company 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 Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, and in each such case, Parent or Xxxxxxxxx and/or the Surviving CompanyCorporation, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or Xxxxxxxxx and/or the Surviving CompanyCorporation, as applicable, assume the obligations set forth in this Section 6.046.7.
(db) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as For a period of or six years from and after the Effective Time toTime, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for Xxxxxxxxx shall either cause to be maintained in effect the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the policies of directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by Janus or any of their subsidiaries or provide substitute polices for of not less than the Company existing coverage and have other terms not less favorable to the insured persons with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided Time, except that in no event shall Xxxxxxxxx or the cost Surviving Corporation be required to pay with respect to such insurance policies (or substitute insurance policies) of any such Pre-Paid Tail Janus in respect of any one policy year exceed more than 300% of the aggregate annual premium most recently paid payable by Janus for such insurance for the Company prior to the date of this Agreement twelve months (the “Maximum Amount”); provided, further that and if Xxxxxxxxx or the total cost Surviving Corporation is unable to obtain the insurance required by this Section 6.7(b) it shall obtain as much comparable insurance as possible for maintaining the years within such Presix-Paid Tail exceeds year period for an annual premium equal to the Maximum Amount, then in respect of each policy year within such period; provided that in lieu of the Company (after foregoing, Janus may obtain at or prior consultation with Parent) to the Effective Time a six-year “tail” policy under Janus’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 obtainbe obtained for an amount that, or following Closingon an annual basis, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost does not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fc) The provisions of this Section 6.04 6.7 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person person may have by contract Contract or otherwise.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Janus Henderson Group PLC), Agreement and Plan of Merger (Janus Capital Group Inc)
Indemnification, Exculpation and Insurance. (a) From and after the Effective Time, Parent agrees shall cause the Surviving Corporation and any successor thereof to, (i) agree subject to applicable Law, to indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director, officer or manager of the Company or any of its Subsidiaries (each, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any Proceeding (whether civil, criminal, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee was a director, officer or manager of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, manager, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, manager, employee, agent, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Proceeding relating in whole or in part to the transactions contemplated by this Agreement), to the fullest extent permitted under applicable Law, and (ii) assume all rights obligations of the Company and such Subsidiaries to indemnification, advancement the Indemnitees in respect of expenses indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates (x) the Company’s certificate of incorporation or and by-laws (or comparable and the organizational documents) and any indemnification or other similar agreements documents of such Subsidiaries as currently in effect as of the Company or any date of its Subsidiaries, in each case this Agreement and (y) the indemnification agreements listed on Schedule 7.7 as in effect on as of the date of this Agreement, which agreements shall survive the consummation of the transactions contemplated by this Agreement and continue in full force and effect in accordance with their respective terms. From Without limiting the foregoing, Parent, from and after the Effective Time, shall cause the certificate of incorporation and by-laws of the Surviving Corporation and the organizational documents of its Subsidiaries to contain provisions no less favorable to the fullest extent permitted by Applicable Law (including Indemnitees with respect to the fullest extent authorized or permitted by any amendments to or replacements limitation of the DGCL adopted after the date liabilities of this Agreement that increase the degree to which a corporation may indemnify its directors, officers and directors) the Surviving Company agrees that it will indemnify managers and hold harmless each individual who is indemnification than are set forth as of the date of this AgreementAgreement in the Company’s certificate of incorporation and by-laws and its Subsidiaries’ organizational documents, which provisions shall not be amended, repealed or who becomes prior to otherwise modified in a manner that would adversely affect such rights thereunder of the Indemnitees. In addition, from and after the Effective Time, a director or officer of Parent shall cause the Company or Surviving Corporation to agree, subject to applicable Law, to advance any of its Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person expenses (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred expenses of legal counsel) of any Indemnitee under this Section 7.7 (including in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect enforcing the indemnity and other obligations referred to matters existing or occurring or alleged to occur at or prior in this Section 7.7) as incurred to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))fullest extent permitted under applicable Law, arising out of or pertaining to the fact provided that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, undertaking to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (ii) the Surviving Company shall cooperate in the defense of any such matterindemnification.
(b) For Parent shall cause (at Parent’s expense) the Surviving Corporation and any successor thereof to purchase and keep in effect a period of “tail” directors’ and officers’ liability insurance policy for the six (6) years following 6)-year period commencing at the Effective Time, the Surviving Company shallissued by one or more reputable insurers, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts covering acts or circumstances omissions occurring at or prior to the Effective TimeTime with respect to those persons who are currently (and any additional persons who prior to the Effective Time become) covered by the Company’s and its Subsidiaries’ directors’ and officers’ liability insurance policy on terms and scope with respect to such coverage, on the same basis as set forth and in the Company Charter and Company By-laws amount, not less favorable to such individuals than those of such policy in effect on the date of this Agreementhereof. At Parent’s request, the Company shall arrange for any such “tail” policy to the fullest extent permitted from time be purchased (at Parent’s expense) and to time under Applicable Law, which provisions shall not be amended except become effective as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunderEffective Time.
(c) The provisions of this Section 7.7 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs and his or her representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. The obligations of Parent and the Surviving Corporation under this Section 7.7 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 7.7 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 7.7 applies shall be third-party beneficiaries of this Section 7.7).
(d) In the event that Parent, the Surviving Company 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 Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving Company, as applicable, shall cause proper provision to shall be made so that the successors and assigns of Parent, the Surviving Corporation or the transferee of such properties and assets shall assume and be responsible for all of the respective obligations of Parent or the Surviving CompanyCorporation, as applicablethe case may be, assume the obligations set forth in this Section 6.047.7.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(f) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Interline Brands, Inc./De)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights existing as of the Agreement Date to indemnification, advancement of expenses and exculpation from liabilities Liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or and/or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates memorandum of incorporation association or bybye-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as the Company Subsidiaries in effect on as of the date of this Agreement, shall Agreement Date will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company and the Company Subsidiaries to perform their respective obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who was prior to or is as of the date of this AgreementAgreement Date, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its the Company Subsidiaries or who was prior to or is as of the date of this AgreementAgreement Date, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, lossesLiabilities, liabilitiesJudgments, damages, judgments, inquiries, fines, amounts paid in settlement fines and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative Action (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated herebyTransactions)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Action, (ix) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) 10 Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or Bermuda Companies Act, the Surviving Company’s certificate memorandum of incorporation association or bybye-lawslaws (or comparable organizational documents) or any applicable indemnification agreement, to repay such advances if it is ultimately determined by final non-appealable adjudication that such Person is not entitled to indemnification and (iiy) the Surviving Company shall will cooperate in the defense of any such matter.
(b) For a period of six (6) years following from and after the Effective Time, the Surviving Company shallwill, and Parent shall will cause the Surviving Company to, either maintain or cause to be maintained in effect the provisions current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company or the Company Subsidiaries or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, in its certificate either case, of incorporation not less than the existing coverage and by-laws having other terms not less favorable to the extent they provide for indemnification, advancement insured Persons than the directors’ and reimbursement of expenses officers’ liability insurance and exculpation of each fiduciary liability insurance coverage currently maintained by the Company Indemnified Party, as applicable, with respect to claims arising from facts or circumstances occurring at events that occurred on or prior to before the Effective Time, on except that in no event will the same basis as set forth Surviving Company be required to pay with respect to such insurance policies in respect of any one policy year more than 300% of the aggregate annual premium most recently paid by the Company Charter and Company By-laws in effect on the date of this Agreement, prior to the fullest extent permitted from time Agreement Date (the “Maximum Amount”), and if the Surviving Company is unable to time under Applicable Law, which provisions shall not be amended except as obtain the insurance required by Applicable Law or except this Section 6.04(b) it will obtain as much comparable insurance as possible for each year within such six-year period for an annual premium equal to make changes permitted by Applicable Law that would enlarge the scope Maximum Amount. In lieu of such insurance, prior to the Closing Date the Company Indemnified Partiesmay, at its option, purchase “tail” directors’ indemnification rights and officers’ liability insurance and fiduciary liability insurance for a period of six years for the Company and its current and former directors, officers and employees who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail insurance to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured Persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time; provided that in no event will the cost of any such tail insurance exceed the Maximum Amount. The Surviving Company will maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(c) The provisions of this Section 6.04 (i) will survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties) to the extent of such indemnified or insured party’s interest herein, and his or her heirs, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
(d) In the event that Parent, 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 surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving Company, as applicable, shall Company will cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company assume the Surviving Company, as applicable, assume the ’s obligations set forth in this Section 6.04.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(f) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Urovant Sciences Ltd.), Merger Agreement (Sumitomo Chemical Co., Ltd.)
Indemnification, Exculpation and Insurance. (a) For a period of six (6) years from the Effective Time, Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (whether asserted or claimed prior to, at or after the Effective Time) now existing in favor of the current or former directors, directors or officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation governing or by-laws (or comparable organizational documents) documents and any indemnification or other similar agreements of the Company or any of its the Company Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms, and each of the Company and the Company Subsidiaries shall perform its obligations thereunder. From Without limiting the foregoing, during the period commencing at the Effective Time and after ending on the sixth (6th) anniversary of the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will Corporation shall indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursementsdisbursements (“Losses”), incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (Time, including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director or officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (ix) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days Corporation in accordance with the organizational documents and any indemnification or other similar agreements of receipt by the Surviving Company from Corporation as in effect on the Company Indemnified Party date of a request thereforthis Agreement; provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving CompanyCorporation’s certificate of incorporation or by-lawsbylaws (or comparable organizational documents) or any such indemnification or other similar agreements, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (iiy) the Surviving Company Corporation shall reasonably cooperate in the defense of any such matter.
(b) For a period of six (6) years following from and after the Effective Time, Parent and the Surviving Company shall, and Parent Corporation shall either cause the Surviving Company to, maintain to be maintained in effect the provisions in its certificate current policies of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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, Parent or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.04.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy maintained by the Company or the Company Subsidiaries or provide substitute policies for the Company and its the Company Subsidiaries and their current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the CompanyCompany or the Company Subsidiaries, in either case, of not less than the existing coverage and having other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company or the Company Subsidiaries with respect to claims arising from facts or events that occurred at or before the Effective Time (with insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance), except that in no event shall Parent or the Surviving Corporation be required to pay with respect to such insurance policies in respect of any one (1) policy year more than 300% of the aggregate annual premium of the policy currently in effect on the date of this Agreement (the “Maximum Amount”), and if the Surviving Corporation is unable to obtain the insurance required by this Section 7.05(b) it shall obtain as much comparable insurance as possible for the years within such six (6)-year period for an annual premium equal to the Maximum Amount, in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date the Company may, at its option, purchase a “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and the Company Subsidiaries and their current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company or the Company Subsidiaries, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company or the Company Subsidiaries with respect to claims arising from facts or events that occurred on at or before the Effective Time (the “Pre-Paid Tail”)Time; provided that in no event shall the cost of any such Pre-Paid Tail tail policy in respect of any one (1) policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Parent and the Surviving Company Corporation shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(ec) From In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and after is not the Effective Timecontinuing 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, Parent then, and in each such case, the Surviving Corporation shall guarantee cause proper provision to be made so that the prompt payment of the obligations successors and assigns of the Surviving Company and its Subsidiaries under Corporation assume the obligations set forth in this Section 6.047.05.
(fd) The provisions of this Section 6.04 7.05 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification indemnification, advancement of expenses, exculpation or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Carbonite Inc), Merger Agreement (Open Text Corp)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) Organizational Documents and any indemnification or other similar agreements Contracts of the Company or any of its SubsidiariesCompany Subsidiary, in each case case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their termsterms (it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and Parent shall cause the Surviving Corporation and the Company Subsidiaries to perform their respective obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company Corporation agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its Subsidiaries Company Subsidiary or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened ActionClaim, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such ActionClaim covered under this Section 6.09, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action Claim from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request thereforParent; provided that (i) any Person to whom seeking advancement of expenses are advanced provides shall first provide an undertaking, if and only to the extent required by the DGCL applicable Law or the Surviving CompanyCorporation’s certificate of incorporation or by-lawsOrganizational Documents, to the Parent, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (ii) the Surviving Company Corporation shall cooperate in good faith in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, Parent or the Surviving Company Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or Surviving Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving CompanyCorporation, as applicablethe case may be, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving CompanyCorporation, as applicablethe case may be, assume the obligations covenants and agreements set forth in this Section 6.046.09.
(dc) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as For a period of or after the Effective Time to, purchase a six (6) -year prepaid “tail” years from and after the Effective Time, the Surviving Corporation shall either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance policy and fiduciary liability insurance policy maintained by the Company or its Subsidiaries or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount either case, of not less than the existing coverage and to have having other terms not materially less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the with insurance carriers having at least an “Pre-Paid Tail”A” rating by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance); provided , except that in no event shall the cost of any Surviving Corporation be required to pay with respect to such Pre-Paid Tail insurance policies in respect of any one (1) policy year exceed more than three hundred percent (300% %) of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that and if the total cost Surviving Corporation is unable to obtain the insurance required by this Section 6.09(c) it shall obtain as much comparable insurance as possible for maintaining the years within such Pre-Paid Tail exceeds six (6) year period for an annual premium equal to the Maximum Amount, then in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date the Company (after prior consultation may, at its option, purchase a “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors, officers and employees who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not materially less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with Parent) may obtain, respect to claims arising from facts or following Closing, Parent shall obtain a Pre-Paid Tail with events that occurred on or before the maximum coverage available Effective Time for a total period of not less than six (6) years; provided that in no event shall the cost not to of any such tail policy in respect of any one policy year exceed the Maximum Amount. The Surviving Company Corporation shall maintain such policies in full force and effect, effect and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 6.09 (i) shall survive consummation of the MergerMerger for six years, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her their heirs and his or her representatives, their representatives and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Allete Inc), Merger Agreement (Allete Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) Organization Documents and any indemnification or other similar agreements Contracts of the Company or any of its SubsidiariesCompany Subsidiary, in each case case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their termsterms (it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and Parent shall cause the Surviving Corporation and the Company Subsidiaries to perform their respective obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company Corporation agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its Subsidiaries Company Subsidiary or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened ActionClaim, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such ActionClaim covered under this Section 6.09, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action Claim from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request thereforParent; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL applicable Law or the Surviving CompanyCorporation’s certificate of incorporation or by-lawsOrganizational Documents, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (ii) the Surviving Company Corporation shall cooperate in good faith in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, Parent or the Surviving Company Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or Surviving Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving CompanyCorporation, as applicablethe case may be, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving CompanyCorporation, as applicablethe case may be, assume the obligations covenants and agreements set forth in this Section 6.046.09.
(dc) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as For a period of or after the Effective Time to, purchase a six (6) -year prepaid “tail” years from and after the Effective Time, the Surviving Corporation shall either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance policy and fiduciary liability insurance policy maintained by the Company or its Subsidiaries or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount either case, of not less than the existing coverage and to have having other terms not materially less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the with insurance carriers having at least an “Pre-Paid Tail”A” rating by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance); provided , except that in no event shall the cost of any Surviving Corporation be required to pay with respect to such Pre-Paid Tail insurance policies in respect of any one policy year exceed more than 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that and if the total cost Surviving Corporation is unable to obtain the insurance required by this Section 6.09(c) it shall obtain as much comparable insurance as possible for maintaining the years within such Pre-Paid Tail exceeds six (6) year period for an annual premium equal to the Maximum Amount, then in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date the Company (after prior consultation may, at its option, purchase a “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors, officers and employees who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not materially less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with Parent) may obtain, respect to claims arising from facts or following Closing, Parent shall obtain a Pre-Paid Tail with events that occurred on or before the maximum coverage available Effective Time for a total period of not less than six (6) years; provided that in no event shall the cost not to of any such tail policy in respect of any one policy year exceed the Maximum Amount. The Surviving Company Corporation shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 6.09 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, representatives and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Westar Energy Inc /Ks), Merger Agreement (Kansas City Power & Light Co)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, (ix) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification and (iiy) the Surviving Company shall cooperate in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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 surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.04.
(d) Prior For a period of six (6) years from and after the Effective Time, the Surviving Company 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 or its Subsidiaries or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company in either case, of not less than the existing coverage and having other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (with insurance carriers having the same or better ratings with respect to directors’ and officers’ liability insurance and fiduciary liability insurance as the Company’s carrier as of the date of this Agreement), except that in no event shall the Surviving Company be required to pay with respect to such insurance policies in respect of any one policy year more than 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”), and if the Surviving Company is unable to obtain the insurance required by this Section 6.04 it shall obtain as much comparable insurance as possible for the years within such six (6)-year period for an annual premium equal to the Maximum Amount, in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date the Company shall may, at its option (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”)Time; provided that in no event shall the cost of any such Pre-Paid Tail tail policy in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then . In the event the Company (after prior consultation with Parent) may obtainpurchases such tail coverage, or following Closing, Parent the Surviving Company shall obtain a Pre-Paid Tail with cease to have any obligations under the maximum coverage available for a total cost not to exceed the Maximum Amountfirst sentence of this Section 6.04(d). The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(f) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Entegris Inc), Merger Agreement (Atmi Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights existing as of the Agreement Date to indemnification, advancement of expenses and exculpation from liabilities Liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or and/or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) Organizational Documents and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as the Company Subsidiaries in effect on as of the date of this Agreement, shall Agreement Date will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company and the Company Subsidiaries to perform their respective obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers Parent shall, and directors) shall cause the Surviving Company agrees that it will to, indemnify and hold harmless each individual who was prior to or is as of the date of this AgreementAgreement Date, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its the Company Subsidiaries or who was prior to or is as of the date of this AgreementAgreement Date, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director director, officer or officer employee of another Person (the “Company Indemnified PartiesPersons”), against all claims, lossesLiabilities, liabilitiesJudgments, damages, judgments, inquiries, fines, amounts paid in settlement fines and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative Action (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated herebyTransactions)), arising out of or pertaining to the fact that the Company Indemnified Party Person is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Action, (i) each Company Indemnified Party Person will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party Person of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or Bermuda Companies Act, the Surviving Company’s certificate of incorporation Organizational Documents or by-lawsany applicable indemnification agreement, to repay such advances if it is ultimately determined by final non-appealable adjudication that such Person is not entitled to indemnification and (ii) the Surviving Company shall will cooperate in the defense of any such matter. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Action, unless such settlement, compromise, consent or termination includes an unconditional release of all of the Company Indemnified Persons (who could have sought indemnification, advancement of expenses or exculpation from Liabilities in connection with such Action) from all liability arising out of such Action.
(b) For a period of six (6) years following from and after the Effective Time, the Surviving Company shallwill, and Parent shall will cause the Surviving Company to, either maintain or cause to be maintained in effect the provisions current policies of directors’ and officers’ liability, fiduciary liability and employment practices liability insurance maintained by or for the benefit of the Company or the Company Subsidiaries or provide substitute policies (issued by insurers with an A.M. Best financial strength rating of A- or better) for the Company and Company Subsidiaries and the insured Persons who are covered by such insurance currently maintained by or for benefit of the Company and the Company Subsidiaries (the “Current Insurance”), in its certificate of incorporation either case, with limits not less than the existing coverage and by-laws having other terms not less favorable to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, insured Persons than the Current Insurance with respect to claims and matters arising from facts or circumstances occurring at events that occurred on or prior to before the Effective Time, on except that in no event will the same basis as set forth Surviving Company be required to pay with respect to such insurance policies in respect of any one policy year more than three hundred percent (300%) of the aggregate annual premium most recently paid by the Company Charter and Company By-laws in effect on the date of this Agreement, prior to the fullest extent permitted from time Agreement Date (the “Maximum Amount”), and if the Surviving Company is unable to time under Applicable Law, which provisions shall not be amended except as obtain the insurance required by Applicable Law or except this Section 6.04(b) it will obtain as much comparable insurance as possible for each year within such six (6)-year period for an annual premium equal to make changes permitted by Applicable Law that would enlarge the scope Maximum Amount. In lieu of such insurance, prior to the Closing Date the Company Indemnified Partiesmay, at its option, purchase “tail” directors’ indemnification rights and officers’ liability, fiduciary liability and employment practices liability insurance for a period of six (6) years for the Company and the Company Subsidiaries and the insured Persons who are covered by Current Insurance, such tail insurance to provide coverage with limits not less than, and to have other terms not less favorable to the insured Persons than, the Current Insurance with respect to claims arising from facts or events that occurred on or before the Effective Time; provided that in no event will the aggregate cost of any such tail insurance exceed the Maximum Amount. Parent will cause the Surviving Company to, and the Surviving Company will, maintain such insurance policies in full force and effect without any amendment adverse to the insured Persons thereunder, and continue to honor the obligations thereunder.
(c) The provisions of this Section 6.04 (i) will survive consummation of the Merger until the date that is the sixth (6th) anniversary of the Closing Date, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Persons) to the extent of such indemnified or insured Person’s interest herein, and his or her heirs and estates and trust vehicles, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
(d) Parent hereby acknowledges that the Company Indemnified Persons may have certain rights to indemnification, advancement of expenses or insurance provided by other Persons that are in effect as of the Agreement Date. Parent hereby agrees that the Surviving Company will be the indemnitor of first resort (i.e., its obligations to the Company Indemnified Persons are primary and any obligation of such other Persons to advance expenses or to provide indemnification for the same expenses or liabilities incurred by any such Company Indemnified Person are secondary). Parent further agrees that no advancement or payment by any of such other Persons on behalf of any such Company Indemnified Person with respect to any claim for which such Company Indemnified Person has sought indemnification from the Surviving Company or any Company Subsidiary shall affect the foregoing and such other Persons shall have a right of contribution or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Company Indemnified Person against the Surviving Company or any Company Subsidiary, as applicable.
(e) In the event that Parent, Parent or 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 surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or and the Surviving Company, as applicable, shall Company will cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company assume Parent and/or the Surviving Company, ’s obligations (as applicable, assume the obligations ) set forth in this Section 6.04.
(df) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below)Nothing in this Agreement is intended to, or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company will be construed to, as of release, waive or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability impair any rights to claims pursuant to any applicable insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunderindemnification agreement.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(f) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Myovant Sciences Ltd.), Merger Agreement (Myovant Sciences Ltd.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its the Company Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements each of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers Parent and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, (i) action, suit or proceeding, each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL Cayman Companies Law or the Articles of Association or the Memorandum of Association of the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification indemnification. Without limiting the foregoing, in the event that any claim is brought against any Company Indemnified Party, (x) Parent shall have the right to assume or direct any of its Subsidiaries to assume the defense thereof with legal counsel of Parent’s choosing, and if Parent shall assume or direct any of its Subsidiaries to assume the defense, then Parent or such Subsidiary, as applicable, shall not be liable to such Company Indemnified Party for any legal expenses of other counsel or any expenses subsequently incurred by such Company Indemnified Party in connection with the defense thereof; provided, however, that such Company Indemnified Party may employ counsel of its own choosing, and Parent or such Subsidiary, as applicable, shall advance to such Company Indemnified Party reasonable legal expenses of such counsel, if (i) Parent does not timely assume the defense thereof or (ii) under applicable standards of professional conduct, there is an actual or potential conflict of interest between the Surviving legal defenses for Parent (or the Subsidiary) and those for the Company Indemnified Party in the conduct of the defense of an action; (y) the Company Indemnified Party shall cooperate with Parent or such Subsidiary, as applicable, in the defense of any such matter; and (z) Parent or such Subsidiary, as applicable, shall not be liable for any settlement of any claim effected without its written consent (such consent not to be unreasonably withheld).
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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 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, Parent or the Surviving Company, as applicable, Company shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, Company assume the obligations set forth in this Section 6.046.04(b).
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fc) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to insurance indemnification or contribution that any such Person may have by contract or otherwise.
(d) For the avoidance of doubt, notwithstanding that the Company Indemnified Parties may be entitled to indemnification pursuant to one or more provisions under this Agreement, the Share and Asset Purchase Agreement or otherwise, in no event shall any such Company Indemnified Party be entitled to be recover more than once in respect of the same claims, losses, liabilities, damages, judgments, inquiries, fines, fees, cost or expenses.
Appears in 2 contracts
Samples: Merger Agreement (Home Loan Servicing Solutions, Ltd.), Merger Agreement (New Residential Investment Corp.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) Parent shall cause the Surviving Company agrees that it will indemnify Corporation to, (i) indemnify, defend and hold harmless each individual who is as of the date of this Agreementharmless, or who becomes prior to the Effective Time, a director or officer all past and present directors and officers of the Company or any of and its Subsidiaries or who is as of the date of this Agreement(individually, or who thereafter commences prior to the Effective Timean “Indemnified Party” and, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (collectively, the “Company Indemnified Parties”)) against any costs, against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, expenses (including attorneys’ fees and expenses and disbursements), judgments, fines, losses, claims damages or liabilities incurred in connection with any actual claim, action, suit, proceeding or threatened Actioninvestigation, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))investigative, arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer at or director prior to the Effective Time a director, officer, employee or fiduciary of the Company or any of its Subsidiaries or is or was at or prior to the Effective Time serving at the request of of, or to represent the interest of, the Company or any of its Subsidiaries as a director director, officer, partner, member, trustee, fiduciary, employee or officer agent of another Personany other corporation, partnership, joint venture, limited liability company, trust, employee benefit plan or other enterprise, including any charitable or not-for profit public service organization or trade association whether asserted or claimed prior to, at or after the Effective Time. In Time (including with respect to acts or omissions occurring in connection with this Agreement and the event consummation of any such Actionthe transactions contemplated hereby), (i) each Company Indemnified Party will be entitled to and provide advancement of expenses incurred to the Indemnified Parties in the defense of any such Action from the Surviving Company connection therewith (within ten (10) Business Days 10 days of receipt by Parent or the Surviving Company Corporation from the Company an Indemnified Party of a request therefor), in each case, to the fullest extent that the Company or the Subsidiary for which they were acting in such capacity would have been permitted to indemnify, defend, hold harmless or advance expenses under applicable Law as it presently exists or may hereafter be amended (but, in the case of any such amendment, only to the extent such amendment permits the Surviving Corporation to provide broader indemnification rights or rights of advancement of expenses than such Law permitted the Surviving Corporation to provide prior to such amendment); provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, undertaking to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and indemnification, (ii) without limitation to clause (i), to the fullest extent permitted by applicable Law, include and cause to be maintained in effect in the Surviving Company shall cooperate Corporation’s (or any successor’s) organizational documents for a period of seven years after the Effective Time, provisions regarding elimination of liability of directors, and indemnification of and advancement of expenses to directors and officers of the Company, no less favorable than those contained in the Company’s Organizational Documents as of the date hereof and (iii) not settle, compromise or consent to the entry of any judgment in any proceeding or threatened Action (and in which indemnification could be sought by an Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Action or such Indemnified Party otherwise consents in writing (not to be unreasonably withheld, conditioned or delayed), and cooperates in the defense of any such matter.
(b) For a period proceeding or threatened Action. Effective as of six (6) years following and from the Effective Time, the Surviving Company shallCorporation expressly assumes, and Parent shall cause agrees to perform, the Surviving Company to, maintain in effect the provisions in its certificate of incorporation Company’s obligations under those certain Indemnification Agreements by and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in between the Company Charter and Company By-laws those individuals listed in effect on Section 5.06 of the date of this AgreementDisclosure Schedule (collectively, the “Indemnification Agreements”) to the fullest extent permitted from time to time under Applicable by Law, which provisions shall not be amended except as required by Applicable Law or except but in no event to make changes permitted by Applicable Law that would enlarge the scope of any lesser extent than the Company Indemnified Parties’ indemnification rights thereunderwould be required to perform them if the transactions contemplated hereby had not taken place.
(cb) In the event that Parent, either Parent or the Surviving Company Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or Surviving Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties properties, rights and other assets to any Person, then, and in each such case, Parent or shall, and shall cause the Surviving CompanyCorporation to, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent such successor or the Surviving Company, as applicable, assign shall expressly assume the obligations set forth in this Section 6.045.06.
(dc) Prior to the Closing Date Effective Time, the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below)shall, or and, if the Company is unable to purchase the Pre-Paid Tailto, Parent shall, or shall cause the Surviving Company to, Corporation as of or after the Effective Time to, purchase a six (6) -year prepaid obtain and fully pay for, at no expense to the individual insureds thereunder, non-cancellable “tail” insurance policies with claims periods of at least seven years from and after the Effective Time from insurance carriers with the same or better claims-paying ability ratings as the Company’s insurance carriers with respect to directors’ and officers’ liability insurance policy policies and fiduciary liability insurance policy policies in place immediately prior to the Effective Time (collectively, “D&O Insurance”) for the Company and its current and former directors and officers persons who are currently covered by the directors’ Company’s existing D&O Insurance, with terms, conditions, retentions and officers’ and fiduciary liability insurance levels of coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less at least as favorable to the insured persons than individuals as the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company Company’s existing D&O Insurance with respect to claims arising from facts matters existing or events that occurred on occurring at or before prior to the Effective Time (the “Pre-Paid Tail”); provided that including in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of connection with this Agreement (or the “Maximum Amount”transactions contemplated hereby); provided, further however, that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtainshall not pay, or following Closingthe Surviving Corporation shall not be required to pay, as the case may be, for such “tail” extended reporting periods aggregate one-time premium costs in excess of the amount set forth in Section 5.06 of the Disclosure Schedule. If the Company and the Surviving Corporation for any reason fail to obtain such “tail” insurance policies as of the Effective Time, the Surviving Corporation shall, and Parent shall obtain a Pre-Paid Tail with cause the maximum coverage available Surviving Corporation to, for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From period of at least seven years from and after the Effective Time, obtain and maintain in effect, at no expense to any Indemnified Party, policies of insurance for the persons who are covered by the Company’s existing D&O Insurance, with terms, conditions, retentions and levels of coverage at least as favorable as provided in such existing D&O Insurance, from insurance carriers with the same or better claims-paying ability ratings as the Company’s current D&O Insurance carriers; provided, however, that the Surviving Corporation shall not be required to pay for such policies of insurance aggregate one-time premium costs in excess of the amount set forth in Section 5.06 of the Disclosure Schedule (the “Premium Cap”), in which case the Surviving Corporation shall, and Parent shall guarantee cause the prompt payment Surviving Corporation to, use commercially reasonable efforts to maintain in effect, at no expense to any Indemnified Party, for a period of at least seven years from the Effective Time for the persons who are covered by the Company’s existing D&O Insurance, policies of insurance with the best overall terms, conditions, retentions and levels of coverage reasonably available for an annual premium equal to the Premium Cap. Parent hereby acknowledges that under the Indemnification Agreements, the Company has certain obligations relating to the D&O Insurance coverage to be obtained pursuant to this Agreement, including this Section 5.06(c). Parent further acknowledges and agrees that in the event of any inconsistency between the terms of this Agreement and the terms of any Indemnification Agreement, the terms of the obligations of the Surviving Company and its Subsidiaries Indemnification Agreement will prevail.
(d) Any Indemnified Party wishing to claim indemnification under this Section 6.045.06, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof, but the failure to so notify shall not relieve the Surviving Corporation of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the indemnifying party.
(fe) The provisions of this Section 6.04 5.06 are (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable from and after the Effective Time by, each indemnified or insured party (including the Company Indemnified Parties)Party, 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 person may have by contract Contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Magicjack Vocaltec LTD), Merger Agreement (B. Riley Financial, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, the Parent shall, and shall cause the Surviving Company to, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify applicable Legal Requirements, indemnify, defend and hold harmless harmless, and provide advancement of expenses to, each individual Person who is as of the date of this Agreement, now or who becomes prior to the Effective Time, a director or officer of the Company or at any of its Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or time prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))was, arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries (each an "Indemnitee" and, collectively, the "Indemnified Parties") against all losses, claims, damages, costs, expenses, liabilities or judgments or amounts that are paid in settlement of or in connection with any investigation (formal or informal), claim, proceeding or action that is based in whole or in part on, or arises in whole or in part out of, the fact that such Person is or was serving at the request a director or officer of the Company or any of its Subsidiaries as a director Subsidiaries, and pertaining to any matter existing or officer of another Personoccurring, or any acts or omissions occurring, at or prior to the Effective Time, whether asserted or claimed prior to, or at or after after, the Effective Time. In the event of any such ActionTime (including matters, acts or omissions occurring in connection with (i) each Company Indemnified Party will the approval of or entering into this Agreement or the consummation of the Transactions or (ii) the Options Matters) to the same extent such Persons are entitled to be entitled indemnified, defended, held harmless or have the right to advancement of expenses incurred as of the date of this Agreement by the Company or any of its Subsidiaries pursuant to applicable Legal Requirements, the Company Charter Documents and indemnification agreements of the Company and its Subsidiaries, if any, in existence on the defense date hereof with any directors or officers of any such Action from the Company and its Subsidiaries disclosed on Section 5.14 of the Company Disclosure Letter. The Articles of Association of the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled will contain provisions with respect to indemnification and (ii) exemption that are at least as favorable to the Surviving Company shall cooperate Indemnified Parties as those contained in the defense Company Articles of Association as in effect on the date hereof, which provisions will not be amended, repealed or otherwise modified for a period of seven years from the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Persons, unless such mattermodification is required by Legal Requirement.
(b) For At the Company's election in consultation with Parent, (i) the Company shall use its reasonable best efforts to obtain prior to the Effective Time prepaid "tail" insurance policies with a claims period of six (6) seven years following from the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, Time with respect to directors' and officers' liability indemnification and insurance in amount and scope (and containing terms and conditions that are in the aggregate) no less favorable to the Indemnified Parties than the Company's existing directors' and officers' liability insurance policies disclosed on Section 5.14(b) of the Company Disclosure Letter (the "Current Policies") for claims arising from facts or circumstances occurring at events that occurred on or prior to the Effective Time (including matters, acts or omissions occurring in connection with (i) the approval of or entering into this Agreement or the consummation of the Transactions or (ii) the Options Matters) (collectively, a "Tail Policy") (provided that the Company shall not pay a premium of more than 400% of the annual premium paid by the Company for the Current Policies as of the date hereof (the "Tail Cap") for such "tail" policies) or (ii) if the Company shall not have obtained such tail policy, for a period of seven years after the Effective Time, on Parent shall cause to be maintained in effect directors' and officers' liability insurance policies with respect to claims arising from facts or events that occurred prior to the same basis as set forth Effective Time (including matters, acts or omissions occurring in connection with (i) the approval of or entering into this Agreement or the consummation of the Transactions, or (ii) the Options Matters) in amount and scope (and containing terms and conditions that are in the aggregate) no less favorable to the Indemnified Parties than the Current Policies; provided, that if the annual premiums for such policies at any time during such period exceed 200% of the annual premium paid by the Company Charter and Company By-laws in effect on for the Current Policies as of the date hereof (the "Current Premium"), Parent shall be required to provide such coverage as will then be available at an annual premium equal to 200% of the Current Premium; provided, further, that Parent may satisfy its obligations pursuant to this Agreementclause (ii) by obtaining a Tail Policy or, if a Tail Policy cannot be obtained without paying an aggregate premium greater than the Tail Cap, prepaid tail policies with such coverage as will then be available for an aggregate premium equal to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunderTail Cap.
(c) In If that the event that Parent, Parent or the Surviving Company 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 Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, the Parent or the Surviving Company, as applicable, shall cause proper provision provisions to be made so that the successors and assigns of the Parent or the Surviving Company, as applicable, Company assume the obligations set forth in this Section 6.04.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount5.14. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(f) The provisions of this Section 6.04 5.14 are (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will shall be enforceable by, each indemnified or insured party (including the Company Indemnified Parties)Indemnitee, 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 Contract or otherwise. The obligations of the Parent and the Surviving Company under this Section 5.14 shall not be terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 5.14 applies without the express written consent of such affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 5.14 applies shall be third party beneficiaries of this Section 5.14).
Appears in 2 contracts
Samples: Merger Agreement (Msystems LTD), Merger Agreement (M-Systems Flash Disk Pioneers LTD)
Indemnification, Exculpation and Insurance. (aA) Parent agrees that all All rights to indemnification, advancement of expenses indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, directors or officers or employees of the Company and its Subsidiaries subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documentsinstruments and agreements) and any existing indemnification agreements or other similar agreements arrangements of the Company or any of and its Subsidiaries, in each case as in effect on subsidiaries shall survive the date of this Agreement, Merger and shall continue in full force and effect in accordance with their terms. From , and shall not be amended, repealed or otherwise modified for a period of five years after the Effective Time, Time in any manner that would adversely affect the rights thereunder of such individuals for acts or omissions occurring at or prior to the fullest extent permitted by Applicable Law Effective Time.
(including to B) In the fullest extent authorized event of any threatened or permitted by actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any amendments to such claim, action, suit, proceeding or replacements of the DGCL adopted after the date of this Agreement that increase the degree to investigation in which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each any individual who is as of now or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who is as of subsidiaries (the date of this Agreement"Indemnified Parties"), is, or who thereafter commences prior is threatened to be, made a party, or arising out of or pertaining to (i) the Effective Timefact that he is or was a director, serving at the request officer or current employee of the Company or any of its Subsidiaries as a director subsidiaries or officer of another Person their respective predecessors or (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including ii) this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Persontransactions contemplated hereby, whether in any case asserted or claimed prior to, at arising before or after the Effective Time. In , the event of any such Action, (i) each Company Indemnified Party will be entitled parties hereto agree to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person cooperate and use their reasonable best efforts to whom expenses are advanced provides an undertaking, if defend against and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification and (ii) the Surviving Company shall cooperate in the defense of any such matterrespond thereto.
(bC) For a period of six five (65) years following after the Effective Time, the Surviving Company shall, and Parent Corporation shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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, Parent or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.04.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability tail insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid purchased by the Company prior to the date of this Agreement (Effective Time providing the “Maximum Amount”)Company's current directors' and officers' liability insurance covering acts or omissions occurring prior to the Effective Time; provided, further however, that if the total cost Surviving Corporation may substitute therefor policies of Parent or its subsidiaries (including self-insurance) containing terms with respect to scope of coverage and amount no less favorable to such directors or officers; and provided further, that Surviving Corporation shall not be obligated to maintain any such insurance to the extent that doing so would require payments in addition to the amounts paid for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then that tail insurance policy by the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with to the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunderEffective Time.
(eD) From and after the Effective Time, the Parent shall guarantee the prompt payment of the obligations of cause the Surviving Company Corporation to maintain in effect a directors' and officer's liability insurance policy covering acts or omissions occurring after the Effective Time.
(E) Parent shall cause the Surviving Corporation or any successor thereto, whether by consolidation, merger or transfer of substantially all of its Subsidiaries properties or assets, to comply with its obligations under this Section 6.046.
(f) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Enhance Biotech Inc), Merger Agreement (Enhance Biotech Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will Corporation shall, and T-Mobile shall cause the Surviving Corporation to, indemnify and hold harmless each individual who is as of the date of this Agreementor was, or who becomes prior to the Effective Time, a director or officer of the Company Sprint or any of its Subsidiaries subsidiaries or T-Mobile or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company Sprint or any of its Subsidiaries subsidiaries as a director director, officer or officer employee of another Person person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company Sprint or any of its Subsidiaries subsidiaries or T-Mobile or is or was serving at the request of the Company Sprint or any of its Subsidiaries subsidiaries as a director director, officer or officer employee of another Personperson or in respect of any acts or omissions in their capacities as such directors or officers occurring prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the same extent as such Indemnified Parties are indemnified as of the date of this Agreement by Sprint or T-Mobile (as applicable) pursuant to the Sprint Certificate of Incorporation, the Bylaws of Sprint, the governing organizational documents of any subsidiary of Sprint, the T-Mobile Certificate of Incorporation, the Bylaws of T-Mobile and any indemnification agreements in existence as of the date of this Agreement. In Without limiting the indemnification obligations set forth in the immediately preceding sentence, in the event of any such Actionclaim, action, suit or proceeding, (i) each Company Indemnified Party will be entitled to advancement of costs and expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days of receipt by Corporation to the Surviving Company from the Company same extent as such Indemnified Party is entitled to advancement of a request thereforexpenses as of the date of this Agreement by Sprint or T-Mobile (as applicable) pursuant to the Sprint Certificate of Incorporation, the Bylaws of Sprint, the governing or organizational documents of any subsidiary of Sprint, the T-Mobile Certificate of Incorporation, the Bylaws of T-Mobile and any indemnification agreements in existence as of the date of this Agreement; provided provided, that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or DGCL, the Surviving Company’s certificate Sprint Certificate of incorporation or byIncorporation, the Bylaws of Sprint, the governing organizational documents of any subsidiary of Sprint, the T-lawsMobile Certificate of Incorporation, the Bylaws of T-Mobile and any indemnification agreements in existence as of the date of this Agreement, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification indemnification, and (ii) the Surviving Company T-Mobile and Sprint (as applicable) shall, and shall cause its subsidiaries to, cooperate in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) . In the event that Parent, T-Mobile or the Surviving Company 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 Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, and in each such case, Parent or T-Mobile and/or the Surviving CompanyCorporation, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or T-Mobile and/or the Surviving CompanyCorporation, as applicable, assume the obligations set forth in this Section 6.046.6.
(db) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as For a period of or six years from and after the Effective Time toTime, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for T-Mobile shall either cause to be maintained in effect the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the policies of directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by Sprint or T-Mobile (as applicable) or any of their respective subsidiaries or provide substitute policies for not less than the Company existing coverage and with other terms not less favorable to the insured persons with respect to claims arising from facts or events that occurred on or before prior to the Effective Time (the “Pre-Paid Tail”); provided Time, except that in no event shall the cost T-Mobile be required to pay with respect to such insurance policies (or substitute insurance policies) of any such PreSprint or T-Paid Tail Mobile (as applicable) in respect of any one policy year exceed more than 300% of the aggregate annual premium most recently paid payable by Sprint or T-Mobile (as applicable) for such insurance for the Company prior to the date of this Agreement 12 months (the “Maximum Amount”); provided, further that and if T-Mobile is unable to obtain the total cost insurance required by this Section 6.6 it shall obtain as much comparable insurance as possible for maintaining the years within such Presix-Paid Tail exceeds year period for an annual premium equal to the Maximum Amount, then in respect of each policy year within such period; provided, that in lieu of the Company foregoing, Sprint or T-Mobile (after prior consultation with Parentas applicable) may obtainobtain at or prior to the Effective Time a six-year “tail” policy under Sprint’s or T-Mobile’s existing directors’ and officers’ liability insurance policy (as applicable) providing equivalent coverage to that described in the preceding sentence if and to the extent that the same may be obtained for an amount that, or following Closingon an annual basis, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost does not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fc) The provisions of this Section 6.04 6.6 (i) shall survive the consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person person may have by contract or otherwise.
Appears in 2 contracts
Samples: Business Combination Agreement (SPRINT Corp), Business Combination Agreement (T-Mobile US, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will TopCo shall indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company RockTenn or MWV or any of its Subsidiaries their subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company RockTenn or MWV, as applicable, or any of its Subsidiaries their respective subsidiaries as a director or officer of another Person person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company RockTenn or MWV, as applicable, or any of its Subsidiaries their respective subsidiaries or is or was serving at the request of the Company RockTenn or MWV, as applicable, or any of its Subsidiaries their respective subsidiaries as a director or officer of another Personperson or in respect of any acts or omissions in their capacities as such directors of officers occurring prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the same extent as such Indemnified Parties are indemnified as of the date of this Agreement by RockTenn pursuant to the RockTenn Articles of Incorporation, the By-laws of RockTenn or the governing or organizational documents of any subsidiary of RockTenn, or by MWV pursuant to the MWV Certificate of Incorporation, the By-laws of MWV or the governing organizational documents of any subsidiary of MWV, as applicable, or and any indemnification agreements in existence as of the date of this Agreement. In the event of any such Actionclaim, action, suit or proceeding, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from TopCo to the Surviving Company within ten (10) Business Days same extent as such Indemnified Parties are entitled to advance of receipt expenses as of the date of this Agreement by RockTenn pursuant to the Surviving Company from RockTenn Articles of Incorporation, the Company Indemnified Party By-laws of a request thereforRockTenn or the governing or organizational documents of any subsidiary of RockTenn, or by MWV pursuant to the MWV Certificate of Incorporation, the By-laws of MWV or the governing or organizational documents of any subsidiary of MWV, as applicable, and any indemnification agreements in existence as of the date of this Agreement; provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL GBCC , the DGCL, the RockTenn Articles of Incorporation or the Surviving Company’s certificate By-laws of incorporation RockTenn, or bythe MWV Certificate of Incorporation or the By-lawslaws of MWV, as applicable, and any indemnification agreements in existence as of the date of this Agreement, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (ii) the Surviving Company TopCo shall, and shall cause its subsidiaries to, cooperate in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) . In the event that ParentTopCo, the MWV Surviving Company or RockTenn 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 Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, and in each such case, Parent or the TopCo, MWV Surviving CompanyCompany and/or RockTenn Surviving Corporation, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the TopCo, MWV Surviving CompanyCompany and/or RockTenn Surviving Corporation, as applicable, assume the obligations set forth in this Section 6.046.4.
(db) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as For a period of or six years from and after the Effective Time toTime, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for TopCo shall either cause to be maintained in effect the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the policies of directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by RockTenn or MWV or any of their subsidiaries or provide substitute polices for of not less than the Company existing coverage and have other terms not less favorable to the insured persons with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided Time, except that in no event shall the cost TopCo be required to pay with respect to such insurance policies (or substitute insurance policies) (i) of any such Pre-Paid Tail RockTenn in respect of any one policy year exceed more than 300% of the aggregate annual premium most recently paid payable by RockTenn for such insurance for the Company prior to the date of this Agreement year ending February 28, 2015 (the “RockTenn Maximum Amount”); provided, further that and if TopCo is unable to obtain the total cost insurance required by this Section 6.4 it shall obtain as much comparable insurance as possible for maintaining the years within such Presix-Paid Tail exceeds year period for an annual premium equal to the RockTenn Maximum Amount, then in respect of each policy year within such period; provided that in lieu of the Company (after foregoing, RockTenn may obtain at or prior consultation with Parent) to the Effective Time a six-year “tail” policy under RockTenn’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 obtainbe obtained for an amount that, on an annual basis, does not exceed the RockTenn Maximum Amount, or following Closing(ii) of MWV in respect of any one policy year more than 300% of the annual premium payable by MWV for such insurance for the year ending May 18, Parent 2015 (the “MWV Maximum Amount”), and if TopCo is unable to obtain the insurance required by this Section 6.4 it shall obtain as much comparable insurance as possible for the years within such six-year period for an annual premium equal to the MWV Maximum Amount, in respect of each policy year within such period; provided that in lieu of the foregoing, MWV may obtain at or prior to the Effective Time a Presix-Paid Tail with year “tail” policy under MWV’s existing directors and officers insurance policy providing equivalent coverage to that described in the maximum coverage available preceding sentence if and to the extent that the same may be obtained for a total cost an amount that, on an annual basis, does not to exceed the MWV Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fc) The provisions of this Section 6.04 6.4 (i) shall survive consummation of the MergerMergers, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person person may have by contract or otherwise.
Appears in 2 contracts
Samples: Business Combination Agreement (MEADWESTVACO Corp), Business Combination Agreement (Rock-Tenn CO)
Indemnification, Exculpation and Insurance. (a) Parent CenturyLink agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of Qwest and the Company and its Qwest 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 Qwest or any of its the Qwest Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company Qwest or any of its the Qwest Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or Qwest of any of its the Qwest Subsidiaries as a director or officer of another Person (the “Company Qwest Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Qwest Indemnified Party is or was an officer or director of the Company Qwest or any of its Subsidiaries Qwest Subsidiary or is or was serving at the request of the Company Qwest or any of its Subsidiaries Qwest Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (ix) each Company Qwest Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days business days of receipt by the Surviving Company from the Company Qwest Indemnified Party of a request therefor; provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (iiy) the Surviving Company shall cooperate in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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 surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving Company, as applicable, Company shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, Company assume the obligations set forth in this Section 6.046.05.
(dc) Prior to For a period of six years from and after the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below)Effective Time, or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as shall either cause to be maintained in effect the current policies of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy maintained by Qwest or its Subsidiaries or provide substitute polices for the Company Qwest and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the CompanyQwest in either case, such tail to provide coverage in an amount of not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company Qwest with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided Time, except that in no event shall the cost of any Surviving Company be required to pay with respect to such Pre-Paid Tail insurance policies in respect of any one policy year exceed more than 300% of the aggregate annual premium most recently paid payable by Qwest for such insurance for the Company prior to the date of this Agreement year ending June 30, 2010 (the “Maximum Amount”); provided, further that and if the total cost Surviving Company is unable to obtain the insurance required by this Section 6.05 it shall obtain as much comparable insurance as possible for maintaining the years within such Presix-Paid Tail exceeds year period for an annual premium equal to the Maximum Amount, then in respect of each policy year within such period. In lieu of such insurance, prior to the Company (after prior Closing Date Qwest may, following consultation with Parent) may obtainCenturyLink, or following Closingpurchase a “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for Qwest and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by Qwest for up to $15 million in the aggregate, Parent in which event the Surviving Company shall obtain a Pre-Paid Tail with cease to have any obligations under the maximum coverage available for a total cost not to exceed the Maximum Amountfirst sentence of this Section 6.05(c). The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 (i6.05(i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Qwest Indemnified Parties), his or her heirs and his or her representatives, representatives and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
(e) From and after the Effective Time, CenturyLink shall guarantee the prompt payment of the obligations of the Surviving Company and the Qwest Subsidiaries under Section 6.05(a).
Appears in 2 contracts
Samples: Merger Agreement (Centurytel Inc), Merger Agreement (Qwest Communications International Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their termsterms except in the case of fraud, willful breach or an interested party transaction. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree extent to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification and (ii) the Surviving Company shall cooperate in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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 surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.047.03.
(dc) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below)may, or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time toat its option, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the Time. The cost of any such Pre-Paid Tail in respect of any one “tail” directors’ and officers’ liability insurance policy year exceed 300% of the aggregate annual premium most recently paid by the and fiduciary liability insurance policy shall be a Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost Expense for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunderall purposes hereunder.
(ed) From Parent hereby guarantees, from and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.047.03.
(fe) The provisions of this Section 6.04 (i) 7.03 shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Fleetcor Technologies Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time Closing now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their the respective certificates of incorporation or by-laws (or comparable organizational documents) of the Company Subsidiaries and any indemnification or other similar agreements of any of the Company or any of its Subsidiaries, in each case as in effect on the date of this AgreementClosing Date, shall continue in full force and effect in accordance with their terms. From and after the Effective TimeClosing, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company Parent agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective TimeClosing, a director or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective TimeClosing, serving at the request of the Company or any of its the Company Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time Closing (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective TimeClosing, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, (i) action, suit or proceeding, each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company Parent within ten (10) Business Days of receipt by the Surviving Company Parent from the Company Indemnified Party of a request therefor; provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate organizational documents of incorporation or by-lawsParent, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification indemnification. Without limiting the foregoing, in the event that any claim is brought against any Company Indemnified Party, (x) Parent shall have the right to assume or direct any of its Subsidiaries to assume the defense thereof with legal counsel of Parent’s choosing, and if Parent shall assume or direct any of its Subsidiaries to assume the defense, then Parent or such Subsidiary, as applicable, shall not be liable to such Company Indemnified Party for any legal expenses of other counsel or any expenses subsequently incurred by such Indemnified Party in connection with the defense thereof; provided, however, that such Company Indemnified Party may employ counsel of its own choosing, and Parent or such Subsidiary, as applicable, shall advance to such Company Indemnified Party reasonable legal expenses of such counsel, if (i) Parent does not timely assume the defense thereof or (ii) under applicable standards of professional conduct there is an actual or potential conflict of interest between the Surviving legal defenses for Parent (or the Subsidiary) and those for the Company Indemnified Party in the conduct of the defense of an action; (y) the Company Indemnified Party shall cooperate with Parent or such Subsidiary, as applicable, in the defense of any such matter; and (z) Parent or such Subsidiary, as applicable, shall not be liable for any settlement of any claim effected without its written consent (such consent not to be unreasonably withheld).
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, the Surviving Company Parent or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or Surviving Company 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, Parent or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.045.02.
(dc) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as For a period of or after the Effective Time to, purchase a six (6) -year prepaid “tail” years from and after the Closing, Parent shall provide or cause to be provided directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount either case, of not less than the coverage existing coverage as of the Closing Date and to have having other terms not less favorable substantially equivalent to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company as of the Closing Date with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided Closing, except that in no event shall the cost of any Parent be required to pay, with respect to such Pre-Paid Tail insurance policies in respect of any one policy year exceed 300year, more than 150% of the aggregate annual premium most recently paid by the Company prior to the date Closing Date (which amount is set forth in Section 5.02(c) of this Agreement the Company Disclosure Letter) (the “Maximum Amount”); provided, further that and if Parent is unable to obtain (or to cause to be obtained) the total cost insurance required by this Section 5.02 it shall obtain as much comparable insurance as possible for maintaining the years within such Pre-Paid Tail exceeds six (6) year period for an aggregate annual premium equal to the Maximum Amount, then in respect of each policy year within such period. In lieu of such insurance, Parent may, at its option (following reasonable consultation with the Company), purchase (through or for the Company, as applicable) a “tail” directors’ and officers’ liability insurance policy for a period of six (6) years from and after the Closing for the Company (after prior consultation and its current and former directors and officers who are covered by the directors’ and officers’ insurance and fiduciary liability insurance coverage maintained by the Company as of the Closing Date, such tail to provide coverage in an amount not less than such coverage and to have other terms substantially equivalent to the directors’ and officers’ liability insurance and fiduciary liability insurance coverage maintained by the Company as of the Closing Date with Parent) may obtain, respect to claims arising from facts or following events that occurred on or before the Closing, Parent ; provided that in no event shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to of any such tail policy exceed the Maximum Amount. The Surviving In the event the Company purchases such tail coverage, Parent shall cease to have any obligations under the first sentence of this Section 5.02(c). Parent shall maintain such policies in full force and effecteffect during the period of insurance, and continue to honor the its obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 5.02 (i) shall survive consummation of the MergerTransactions, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to insurance indemnification or contribution that any such Person may have by contract or otherwise.
(e) For the avoidance of doubt, notwithstanding that the Seller Indemnified Parties may be entitled to indemnification pursuant to one or more provisions under this Agreement, the New Merger Agreement or otherwise, in no event shall any such Company Indemnified Party be entitled to be recover more than once in respect of the same claims, losses, liabilities, damages, judgments, inquiries, fines, fees, cost or expenses.
Appears in 2 contracts
Samples: Share and Asset Purchase Agreement (Home Loan Servicing Solutions, Ltd.), Share and Asset Purchase Agreement (New Residential Investment Corp.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) Organization Documents and any indemnification or other similar agreements Contracts of the Company or any of its SubsidiariesCompany Subsidiary, in each case case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their termsterms (it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and Parent shall cause the Surviving Corporation and the Company Subsidiaries to perform their respective obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company Corporation agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its Subsidiaries Company Subsidiary or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened ActionClaim, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such ActionClaim, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action Claim from the Surviving Company Parent within ten (10) Business Days of after receipt by the Surviving Company Parent from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL applicable Law or the Surviving CompanyCorporation’s certificate of incorporation or by-lawsOrganizational Documents, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (ii) the Surviving Company Corporation shall cooperate in good faith in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, Parent or the Surviving Company Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or Surviving Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving CompanyCorporation, as applicablethe case may be, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving CompanyCorporation, as applicablethe case may be, assume the obligations covenants and agreements set forth in this Section 6.046.09.
(dc) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as For a period of or after the Effective Time to, purchase a six (6) -year prepaid “tail” years from and after the Effective Time, the Surviving Corporation shall either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance policy and fiduciary liability insurance policy maintained by the Company or its Subsidiaries or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount either case, of not less than the existing coverage and to have having other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the with insurance carriers having at least an “Pre-Paid Tail”A” rating by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance); provided , except that in no event shall the cost of any Surviving Corporation be required to pay with respect to such Pre-Paid Tail insurance policies in respect of any one policy year exceed more than 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that and if the total cost Surviving Corporation is unable to obtain the insurance required by this Section 6.09(c) it shall obtain as much comparable insurance as possible for maintaining the years within such Pre-Paid Tail exceeds six (6) year period for an annual premium equal to the Maximum Amount, then in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date the Company (after prior may, at its option but following consultation with Parent, purchase a “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors, officers and employees who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms substantially comparable (and not less favorable) may obtain, to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or following Closing, Parent shall obtain a Pre-Paid Tail with events that occurred on or before the maximum coverage available Effective Time for a total period of not less than six (6) years; provided that in no event shall the cost not to of any such tail policy in respect of any one policy year exceed the Maximum Amount. The Surviving Company Corporation shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 6.09 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, representatives and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Corporation and the Company Subsidiaries under this Section 6.09.
Appears in 2 contracts
Samples: Merger Agreement (Empire District Electric Co), Merger Agreement (Algonquin Power & Utilities Corp.)
Indemnification, Exculpation and Insurance. (a) From and after the Effective Time, Parent agrees shall, and shall cause the Surviving Corporation to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company or any of its Subsidiaries (each, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any claim, suit, action, proceeding or investigation (whether civil, criminal, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under (A) or (B), at, or at any time prior to, the Effective Time (including any claim, suit, action, proceeding or investigation relating in whole or in part to the transactions contemplated by this Agreement), to the fullest extent permitted under applicable Law, and (ii) assume all rights obligations of the Company and such Subsidiaries to indemnification, advancement the Indemnitees in respect of expenses indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing as provided in favor (x) the Company’s certificate of incorporation and by-laws and the current or former directors, officers or employees organizational documents of such Subsidiaries as currently in effect and (y) the indemnification agreements listed on Section 7.7 of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar Disclosure Schedule, which agreements shall survive the consummation of the Company or any of its Subsidiaries, in each case as in effect on the date of transactions contemplated by this Agreement, shall Agreement and continue in full force and effect in accordance with their respective terms. From Without limiting the foregoing, Parent, from and after the Effective Time, shall cause the certificate of incorporation and by-laws of the Surviving Corporation to contain provisions no less favorable to the fullest extent permitted by Applicable Law (including Indemnitees with respect to the fullest extent authorized or permitted by any amendments to or replacements limitation of the DGCL adopted after the date liabilities of this Agreement that increase the degree to which a corporation may indemnify its directors and officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is indemnification than are set forth as of the date of this AgreementAgreement in the Company’s certificate of incorporation and by-laws, which provisions shall not be amended, repealed or who becomes prior to otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, from and after the Effective Time, a director or officer of Parent shall, and shall cause the Company and the Surviving Corporation to, pay any expenses (including fees and expenses of legal counsel) of any Indemnitee under this Section 7.7 (including in connection with enforcing the indemnity and other obligations referred to in 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) An Indemnitee shall have the right, but not the obligation, to assume and control the defense of any litigation, claim or proceeding relating to any acts or omissions covered under this Section 7.7 (each, a “Claim”) with counsel selected by the Indemnitee, which counsel shall be reasonably acceptable to Parent; provided, however, that Parent shall be permitted to participate in the defense of such Claim at its Subsidiaries own expense. Each of Parent, the Company, the Surviving Corporation and the Indemnitees shall cooperate in the defense of any Claim and shall provide access to properties and individuals as reasonably requested and furnish or who is cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as of may be reasonably requested in connection therewith.
(c) For the date of this Agreement, or who thereafter commences prior to six (6)-year period commencing at the Effective Time, serving at Parent shall maintain in effect the request of the Company Company’s current directors’ and officers’ liability insurance covering acts or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or omissions occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification and (ii) the Surviving Company shall cooperate in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts those persons who are currently (and any additional persons who prior to the Effective Time become) covered by the Company’s directors’ and officers’ liability insurance policy on terms and scope with respect to such coverage, and in amount, not less favorable to such individuals than those of such policy in effect on the date hereof (or circumstances Parent may substitute therefore policies, issued by reputable insurers, of at least the same coverage with respect to matters occurring at or prior to the Effective Time). In no event will Parent or the Surviving Corporation be required to expend for each covered year an amount in excess of 300% of the current annual premium for such insurance (the “Maximum Premium”). If such insurance coverage is terminated, on cancelled, cannot be obtained at all, or can only be obtained at an annual premium in excess of the same basis Maximum Premium, the Surviving Corporation will maintain such insurance as set forth can be obtained for the remainder of the six-year period for a premium not in excess of the Company Charter and Company By-laws in effect on the date Maximum Premium.
(d) The provisions of this AgreementSection 7.7 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs and his or her representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. The obligations of Parent and the fullest extent permitted from time to time Surviving Corporation under Applicable Law, which provisions this Section 7.7 shall not be amended except terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 7.7 applies unless (x) such termination or modification is required by Applicable applicable Law or except (y) the affected Indemnitee shall have consented in writing to make changes permitted by Applicable Law such termination or modification (it being expressly agreed that would enlarge the scope Indemnitees to whom this Section 7.7 applies shall be third party beneficiaries of the Company Indemnified Parties’ indemnification rights thereunderthis Section 7.7).
(ce) In the event that Parent, the Surviving Company 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 Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving Company, as applicable, shall cause proper provision to shall be made so that the successors and assigns of Parent and the Surviving Corporation or the Surviving Company, as applicable, transferee of such properties and assets shall expressly assume and be responsible for all of the obligations thereof set forth in this Section 6.047.7.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(f) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Post Holdings, Inc.), Merger Agreement (Michael Foods Group, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers Parent shall, and directors) shall cause the Surviving Company agrees that it will to, indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries subsidiaries as a director or officer of another Person person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries subsidiaries as a director or officer of another Personperson or in respect of any acts or omissions in their capacities as such directors of officers occurring prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the same extent as such Indemnified Parties are indemnified as of the date of this Agreement by the Company pursuant to the Company Bye-Laws or the governing or organizational documents of any subsidiary of the Company and any indemnification agreements in existence as of the date of this Agreement. In the event of any such Actionclaim, action, suit or proceeding, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days or Parent to the same extent as such Indemnified Parties are entitled to advancement of receipt expenses as of the date of this Agreement by the Surviving Company from pursuant to the Company Indemnified Party Bye-Laws, the governing or organizational documents of a request thereforany subsidiary of the Company and any indemnification agreements in existence as of the date of this Agreement; provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by Applicable Law, the DGCL or the Surviving Company’s certificate of incorporation or byCompany Bye-laws, and any indemnification agreements in existence as of the date of this Agreement, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (ii) the Surviving Company Parent shall, and shall cause its subsidiaries to, cooperate in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) . In the event that Parent, Parent or the Surviving Company 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 Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, and in each such case, Parent or and/or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or and/or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.046.4.
(db) Prior to For a period of six years from and after the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below)Effective Time, or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as shall either cause to be maintained in effect the current policies of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to Company or any of their subsidiaries or provide coverage in an amount substitute policies for not less than the existing coverage and to which have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company existing terms with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided Time, except that in no event shall Parent or the cost Surviving Company be required to pay with respect to such insurance policies (or substitute insurance policies) of any such Pre-Paid Tail the Company in respect of any one policy year exceed more than 300% of the aggregate annual premium most recently paid payable by the Company for such insurance for the twelve months prior to the date of this Agreement Effective Time (the “Maximum Amount”); provided, further that and if Parent or the total cost Surviving Company is unable to obtain the insurance required by this Section 6.4, it shall obtain as much comparable insurance as possible for maintaining the years within such Presix-Paid Tail exceeds year period for an annual premium equal to the Maximum AmountAmount in respect of each policy year within such period; provided that in lieu of the foregoing, then the Company (after prior may, in consultation with Parent) , obtain at or prior to the Effective Time a six-year “tail” policy under the Company’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 obtainbe obtained for an amount that, or following Closingon an annual basis, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost does not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fc) The provisions of this Section 6.04 6.4 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (IHS Markit Ltd.), Merger Agreement (S&P Global Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all All rights to indemnification, advancement of expenses indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, directors or officers or employees of the Company and its Subsidiaries as provided in their respective certificates its certificate of incorporation or by-laws (or comparable organizational documents) and any existing indemnification agreements or other similar agreements arrangements of the Company or any of its Subsidiaries, in each case as in effect on shall survive the date of this Agreement, Merger and shall continue in full force and effect in accordance with their terms. From , and shall not be amended, repealed or otherwise modified for a period of five years after the Effective Time, Time in any manner that would adversely affect the rights thereunder of such individuals for acts or omissions occurring at or prior to the fullest extent permitted by Applicable Law Effective Time.
(including to b) In the fullest extent authorized event of any threatened or permitted by actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any amendments to such claim, action, suit, proceeding or replacements of the DGCL adopted after the date of this Agreement that increase the degree to investigation in which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each any individual who is as of now or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who is as of (the date of this Agreement"INDEMNIFIED PARTIES" and each an "INDEMNIFIED PARTY"), is, or who thereafter commences prior is threatened to the Effective Timebe, serving at the request of the Company made a party, or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to (i) the fact that the Company Indemnified Party he is or was an a director, officer or director current employee of the Company or any of its Subsidiaries predecessors or is or was serving at the request of the Company (ii) this Agreement or any of its Subsidiaries as a director or officer of another Personthe transactions contemplated hereby, whether in any case asserted or claimed prior to, at arising before or after the Effective Time. In , the event of any such Action, (i) each Company Indemnified Party will be entitled parties hereto agree to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person cooperate and use their reasonable best efforts to whom expenses are advanced provides an undertaking, if defend against and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification and (ii) the Surviving Company shall cooperate in the defense of any such matterrespond thereto.
(bc) For a period of six five (65) years following after the Effective Time, the Surviving Company shall, and Parent Corporation shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation Company's current directors' and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts officers' liability insurance covering acts or circumstances omissions occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, Time with respect to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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, Parent or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.04.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers those persons who are currently covered by the Company's directors’ ' and officers’ and fiduciary ' liability insurance coverage currently maintained by the Company, policy on terms with respect to such tail to provide coverage in an amount not less than the existing scope of coverage and to have other terms not amount no less favorable to the insured persons Company's directors and officers currently covered by such insurance than those of such policy in effect on the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by date hereof; PROVIDED, HOWEVER, that the Company Surviving Corporation may substitute therefor policies of Parent or its subsidiaries (including self-insurance) containing terms with respect to claims arising from facts scope of coverage and amount no less favorable to such directors or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunderofficers.
(ed) From and after the Effective Time, the Surviving Corporation shall maintain in effect a directors' and officer's liability insurance policy covering acts or omissions occurring after the Effective Time.
(e) Parent shall guarantee the prompt payment of the obligations of cause the Surviving Company and Corporation or any successor thereto, whether by consolidation, merger or transfer of substantially all of its Subsidiaries properties or assets, to comply with its obligations under this Section 6.04.
(f) 6.3. The provisions of this Section 6.04 (i) 6.3 shall survive consummation of the Merger, (ii) Effective Time and are intended to be for the benefit of, and will shall be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), Party and other person named herein and his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Front Porch Digital Inc), Merger Agreement (Front Porch Digital Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) Charter Documents and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, Company Subsidiaries shall continue in full force and effect in accordance with their termsterms (it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and Parent shall cause the Company and the Company Subsidiaries to perform their respective obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who was prior to or is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its the Company Subsidiaries or who was prior to or is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgmentsJudgments, inquiries, fines, amounts paid in settlement fines and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (ix) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) 10 Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or Bermuda Companies Act, the Surviving Company’s certificate memorandum of incorporation association or bybye-lawslaws (or comparable organizational documents) or any applicable indemnification agreement, to repay such advances if it is ultimately determined by final non-appealable adjudication that such Person is not entitled to indemnification or any allegation of fraud or dishonesty is proved and (iiy) the Surviving Company shall cooperate in the defense of any such matter.
(b) For The Surviving Company shall use reasonable best efforts to work through the Xxxxx New York FINPRO group to obtain a period “tail” policy of directors’ and officers’ liability insurance providing not less than six (6) years following years’ coverage from each of the primary layer and excess layer carriers who are currently insuring the Company’s directors and officers, with at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the Company Indemnified Parties, in each case with respect to claims arising out of or relating to events which occurred before or at the Effective Time, ; provided that in no event shall the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws be required to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, pay with respect to facts or circumstances occurring at or such insurance policies in respect of any one policy year more than 400% of the aggregate annual premium most recently paid by the Company prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, Agreement which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope is set forth in Section 6.04(b) of the Company Indemnified Parties’ indemnification rights thereunderDisclosure Letter (the “Maximum Amount”), and if the Surviving Company is unable to obtain the insurance required by this Section 6.04(b) at an annual premium equal to or less than the Maximum Amount, it shall obtain as much comparable insurance as possible for each year within such six-year period for an annual premium equal to the Maximum Amount, using reasonable best efforts to work through the Xxxxx New York FINPRO group to maintain continuity of the Company’s current insurers providing the coverage in the various layers.
(c) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, the Company Indemnified Parties, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
(d) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and the Company Subsidiaries under this Section 6.04.
(e) In the event that Parent, 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 surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving Company, as applicable, Company shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, Company assume the obligations set forth in this Section 6.04.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(f) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Arch Capital Group Ltd.), Merger Agreement (Watford Holdings Ltd.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its the Company Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or of any of its the Company Subsidiaries as a director or officer of another Person (the “the Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (ix) each the Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (iiy) the Surviving Company shall cooperate in the defense of any such matter.
(b) For a period of six (6) years following . Without limiting the foregoing, at the Effective Time, the Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain in effect cause the provisions in its certificate of incorporation and by-laws of the Surviving Corporation to the extent they provide include provisions for limitation of liabilities of directors and officers, indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior the indemnitees no less favorable to the Effective Time, on the same basis indemnitees than as set forth in the Company Charter and or the Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the indemnitees except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunderapplicable Law.
(cb) In the event that Parent, 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 surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving Company, as applicable, Company shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, Company assume the obligations set forth in this Section 6.046.05.
(dc) Prior to For a period of six years from and after the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below)Effective Time, or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as shall either cause to be maintained in effect the current policies of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy maintained by the Company or its Subsidiaries or provide substitute polices for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the CompanyCompany in either case, such tail to provide coverage in an amount of not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided Time, except that in no event shall the cost of any Surviving Company be required to pay with respect to such Pre-Paid Tail insurance policies in respect of any one policy year exceed more than 300% of the aggregate annual premium most recently paid payable by the Company prior to for such insurance for the date of this Agreement year ending December 31, 2015 (the “Maximum Amount”); provided, further that and if the total cost Surviving Company is unable to obtain the insurance required by this Section 6.05 it shall obtain as much comparable insurance as possible for maintaining the years within such Presix-Paid Tail exceeds year period for an annual premium equal to the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain in respect of each policy year within such policies in full force and effect, and continue to honor the obligations thereunderperiod.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 6.05 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, representatives and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and the Company Subsidiaries under Section 6.05(a).
Appears in 2 contracts
Samples: Merger Agreement (CEB Inc.), Merger Agreement (Gartner Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its the Company Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or of any of its the Company Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (ix) each the Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (iiy) the Surviving Company shall cooperate in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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 surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving Company, as applicable, Company shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, Company assume the obligations set forth in this Section 6.046.05.
(dc) Prior For a period of six years from and after the Effective Time, the Surviving Company 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 or its Subsidiaries or provide substitute polices for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company in either case, of not less than the existing coverage and have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time, except that in no event shall the Surviving Company be required to pay with respect to such insurance policies in respect of any one policy year more than 300% of the annual premium payable by the Company for such insurance for the year ending December 31, 2010 (the “Maximum Amount”), and if the Surviving Company is unable to obtain the insurance required by this Section 6.05 it shall obtain as much comparable insurance as possible for the years within such six-year period for an annual premium equal to the Maximum Amount, in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date the Company shall (following reasonable consultation may, with the prior written consent of Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (Time. In the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior purchases such tail coverage, the Surviving Company shall cease to have any obligations under the date first sentence of this Agreement (the “Maximum Amount”Section 6.05(c); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 6.05 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, representatives and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and the Company Subsidiaries under Section 6.05(a).
Appears in 2 contracts
Samples: Merger Agreement (SAVVIS, Inc.), Merger Agreement (Centurylink, Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) Organization Documents and any indemnification or other similar agreements Contracts of the Company or any of its SubsidiariesCompany Subsidiary, in each case case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their termsterms (it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and Parent shall cause the Surviving Corporation and the Company Subsidiaries to perform their respective obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company Corporation agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its Subsidiaries Company Subsidiary or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened ActionClaim, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such ActionClaim covered under this Section 6.09, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action Claim from the Surviving Company within ten Parent; provided, that (10i) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom seeking advancement of expenses are advanced provides shall first provide an undertaking, undertaking (if and only to the extent required by the DGCL applicable Law or the Surviving CompanyCorporation’s certificate of incorporation or by-laws, Organizational Documents) to the Parent to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (ii) the Surviving Company Corporation shall cooperate in good faith in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, Parent or the Surviving Company Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or Surviving Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving CompanyCorporation, as applicablethe case may be, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving CompanyCorporation, as applicablethe case may be, assume the obligations covenants and agreements set forth in this Section 6.046.09.
(dc) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as For a period of or after the Effective Time to, purchase a six (6) -year prepaid “tail” years from and after the Effective Time, the Surviving Corporation shall either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance policy and fiduciary liability insurance policy maintained by the Company or its Subsidiaries or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount either case, of not less than the existing coverage and to have having other terms not materially less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the with insurance carriers having at least an “Pre-Paid Tail”A-” rating by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance); provided , except that in no event shall the cost of any Surviving Corporation be required to pay with respect to such Pre-Paid Tail insurance policies in respect of any one policy year exceed more than 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that and if the total cost Surviving Corporation is unable to obtain the insurance required by this Section 6.09(c) it shall obtain as much comparable insurance as possible for maintaining the years within such Pre-Paid Tail exceeds six (6) year period for an annual premium equal to the Maximum Amount, then in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date the Company (after prior consultation may, at its option, purchase a “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors, officers and employees who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not materially less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with Parent) may obtain, respect to claims arising from facts or following Closing, Parent shall obtain a Pre-Paid Tail with events that occurred on or before the maximum coverage available Effective Time for a total period of not less than six (6) years; provided, that in no event shall the cost not to of any such tail policy in respect of any one policy year exceed the Maximum Amount. The Surviving Company Corporation shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 6.09 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, representatives and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Vectren Utility Holdings Inc), Merger Agreement
Indemnification, Exculpation and Insurance. (a) From and after the Effective Time, Parent agrees shall cause the Surviving Corporation to (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company or of a Subsidiary of the Company (each, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any claim, suit, action, proceeding or investigation (whether civil, criminal, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee or fiduciary of another person (including any employee benefit plan)), in each case under (A) or (B), at, or at any time prior to, the Effective Time (including any claim, suit, action, proceeding or investigation relating in whole or in part to the transactions contemplated by this Agreement), to the fullest extent permitted under applicable Law and (ii) assume the obligations with respect to all rights to indemnification, advancement of expenses indemnification and exculpation from liabilities liabilities, including advancement of expenses, for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries Indemnitees as provided in their respective certificates the Company Certificate, the Company Bylaws or similar organizational document of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements Subsidiary of the Company or any of its Subsidiaries, indemnification Contract between such Indemnitees and the Company or any such Subsidiary (in each case case, as in effect on the date hereof), without further action, as of this Agreement, the Effective Time and such obligations shall survive the Merger and shall continue in full force and effect in accordance with their terms. From Without limiting the foregoing, Parent, from and after the Effective Time, shall cause the certificate of incorporation and by-laws of the Surviving Corporation to contain provisions no less favorable to the fullest extent permitted by Applicable Law (including Indemnitees with respect to the fullest extent authorized or permitted by any amendments to or replacements limitation of the DGCL adopted after the date liabilities of this Agreement that increase the degree to which a corporation may indemnify its directors and officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is indemnification than are set forth as of the date of this AgreementAgreement in the Company Certificate and the Company Bylaws or the applicable organizational documents of the Company’s Subsidiaries, which provisions shall not be amended, repealed or who becomes prior to otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, from and after the Effective Time, a director or officer of Parent shall, and shall cause the Company or Surviving Corporation to, pay any of its Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person expenses (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred expenses of legal counsel) of any Indemnitee under this Section 5.05 (including in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect enforcing the indemnity and other obligations referred to matters existing or occurring or alleged to occur at or prior in this Section 5.05) as incurred to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))fullest extent permitted under applicable Law, arising out of or pertaining to the fact provided that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person person to whom expenses are advanced provides an undertaking, if and only undertaking to repay such advances to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification and (ii) the Surviving Company shall cooperate in the defense of any such matterapplicable Law.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, the Surviving Company 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 Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and other assets to any Personperson, then, and in each such case, Parent or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, Corporation shall expressly assume the obligations set forth in this Section 6.045.05.
(dc) Prior to For six years after the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid TailEffective Time, Parent shall, or shall cause the Surviving Company to, as Corporation to maintain in effect the Company’s current directors’ and officers’ liability insurance (or such other insurance that is no less favorable to the Indemnitees than the Company’s current directors’ and officers’ liability insurance) in respect of acts or after omissions occurring at or prior to the Effective Time toTime, purchase a six (6) -year prepaid “tail” covering each person currently covered by the Company’s directors’ and officers’ liability insurance policy (a complete and fiduciary liability insurance accurate copy of which has been heretofore delivered to Parent), on terms with respect to such coverage and amounts no less favorable than those of such policy for in effect on the date hereof; provided, however, (i) the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, may substitute therefor a single premium tail policy with respect to such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance with policy limits, terms and fiduciary liability conditions at least as favorable to the directors and officers covered under such insurance coverage currently maintained by policy as the limits, terms and conditions in the existing policies of the Company; or (ii) if the Company does not substitute as provided in clause (i) above, then Parent may (A) substitute therefor policies of Parent, from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier, containing terms with respect to claims arising from facts coverage (including as coverage relates to deductibles and exclusions) and amounts no less favorable to such directors and officers or events (B) request that occurred on or before the Company obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”Time); provided, further further, that if in connection with this Section 5.05(c), neither the total cost Company nor Parent shall pay a one-time premium (in connection with a single premium tail policy described above) in excess of the amount set forth in Section 5.05(c)(i) of the Company Disclosure Schedule or be obligated to pay annual premiums (in connection with any other directors and officers insurance policy described above) in excess of the annual premiums set forth in Section 5.05(c)(ii) of the Company Disclosure Schedule. It is understood and agreed that in the event such coverage cannot be obtained for maintaining such Pre-Paid Tail exceeds the Maximum Amountamount or less, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum amount of coverage available as may be obtained for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunderamount.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 5.05 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable from and after the Effective Time by, each indemnified or insured party (including the Company Indemnified Parties)Indemnitee, 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 person may have by contract Contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Trane Inc.), Merger Agreement (Ingersoll Rand Co LTD)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all All rights to indemnification, advancement of expenses indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or bythe Company Articles, the Company By-laws (or comparable organizational documents) and any indemnification agreement between such directors, officers or other similar agreements of employees and the Company or any of its Subsidiaries, (in each case case, as in effect on the date of this Agreement) shall be assumed by the Surviving Corporation in the Merger, without further action, as of the Effective Time and shall survive the Merger and shall continue in full force and effect in accordance with their terms. .
(b) The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of individuals who were directors, officers or employees prior to the Effective Time than are presently set forth in the Company Articles and the Company By-laws, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) From and after the Effective Time, to in the fullest extent permitted by Applicable Law (including to the fullest extent authorized event of any pending, threatened or permitted by actual claim, action, suit, proceeding or investigation in which any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual Person who is as of now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or Company, any of its Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person their respective predecessors (the “Company Indemnified Parties”)) is, against all claimsor is threatened to be, lossesmade a party based in whole or in part on, liabilitiesor arising in whole or in part out of, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party he or she is or was an a director or officer or director of the Company or Company, any of its Subsidiaries or is or was serving at any of their respective predecessors, Parent and the request 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 reasonable attorney’s fees and expenses in advance of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event final disposition of any claim, action, suit, proceeding or investigation), judgments, fines and amounts paid in settlement of or in connection with any such Actionthreatened or actual claim, (i) each Company action, suit, proceeding or investigation. Neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any threatened or actual claim, action, suit, proceeding or investigation for which indemnification could be sought by an Indemnified Party will be entitled hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such claim, action, suit, proceeding or investigation or such Indemnified Party otherwise consents in writing to advancement of expenses incurred such settlement, compromise or consent. Parent and the Surviving Corporation shall cooperate with an Indemnified Party in the defense of any matter for which such Action from Indemnified Party could seek indemnification hereunder. Parent’s and the Surviving Company within ten (10Corporation’s obligations under this Section 5.05(c) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if shall continue in full force and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification and (ii) the Surviving Company shall cooperate in the defense of any such matter.
(b) For effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification in respect of any claim, action, suit, proceeding or investigation asserted or made prior to the Effective Time or within such period shall continue until the final disposition of such claim, action, suit, proceeding or investigation.
(6d) For six years following after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions Company’s current directors’ and officers’ liability insurance in its certificate respect of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts acts or circumstances omissions occurring at or prior to the Effective Time, covering each Person currently covered by the Company’s directors’ and officers’ liability insurance policy (a complete and correct copy of which has been heretofore delivered to Parent), on the same basis as set forth terms, including with respect to coverage and amount, no less favorable to such directors and officers in the Company Charter and Company By-laws any material respect than those of such policy in effect on the date of this Agreement; provided, however, that Parent may substitute therefor policies of Parent containing terms, including with respect to coverage and amount, no less favorable to such directors and officers; provided further however, that in no event shall the fullest extent permitted from time Surviving Corporation be required to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope expend for such policies an annual premium amount in excess of 300% of the annual premiums currently paid by the Company Indemnified Parties’ indemnification rights thereunderfor such insurance; provided further however, that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(ce) In the event that Parent, Parent or the Surviving Company 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 Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all a substantial portion of its properties and other assets to any Person, then, and in each such case, Parent or the Surviving CompanyCorporation, as applicable, shall cause proper provision to be made so that the such successors and assigns of Parent or the Surviving Company, as applicable, shall expressly assume the obligations set forth in this Section 6.04.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.045.05.
(f) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) 5.05 are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties)Party, his or her heirs and his or her representatives, Representatives and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have from the Company or any other Person by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Teleflex Inc), Merger Agreement (Arrow International Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees and Sub agree that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions arising or occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or officers, employees and agents of the Company and its Subsidiaries subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable similar organizational documents) shall be assumed and any indemnification or other similar agreements of performed by the Company or any of its SubsidiariesSurviving Corporation, in each case as in effect on without further action, at the date of this Agreement, Effective Time and shall survive the Merger and shall continue in full force and effect in accordance with their terms. From Parent and after Sub agree that any existing indemnification agreements between the Company and any current or former director, officer, employee or agent of the Company or any of its subsidiaries shall be assumed and performed by the Surviving Corporation, without any further action, at the Effective TimeTime and shall survive the Merger and continue in full force and effect in accordance with their terms. In the event of any threatened or actual claim, action, suit, demand, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, demand, proceeding or investigation in which any person who is now, or has been at any time prior to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreementhereof, or who becomes prior to the Effective Time, a director director, officer, employee, fiduciary or officer agent of the Company or any of its Subsidiaries or who is as subsidiary of the date of this AgreementCompany (the "Indemnified Parties") is, or who thereafter commences prior is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the Effective Timefact that he is or was a director, serving at the request officer, employee, fiduciary or agent of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director subsidiary of the Company or any of its Subsidiaries Company, or is or was serving at the request of the Company or any subsidiary of its Subsidiaries the Company as a director director, officer, employee, fiduciary or officer agent of another Personcorporation, partnership, joint venture, trust or other enterprise or (ii) with respect to the directors and officers of the Company, the negotiation, execution or performance of this Agreement or any of the transactions contemplated hereby, whether in any case asserted or claimed prior to, at arising before or after the Effective Time, the parties hereto agree to cooperate and use their commercially reasonable efforts to defend against and respond thereto. In It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time, Parent shall cause the Surviving Corporation to, and the Surviving Corporation shall, indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnified Party (or, with respect to the obligation in clause (ii) above, the directors and officers of the Company) against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees and expenses), judgments, fines and amounts paid in settlement (collectively, "DAMAGES") in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigation, and in the event of any such Actionthreatened or actual claim, action, suit, demand, proceeding or investigation (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in whether asserted or arising before or after the defense of any such Action from Effective Time), the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertakingCompany, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification and (ii) the Surviving Company shall cooperate in the defense of any such matter.
(b) For a period of six (6) years following after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company Corporation to, maintain and the Surviving Corporation shall, promptly pay expenses in effect advance of the provisions in its certificate final disposition of incorporation and by-laws any claim, suit, proceeding or investigation to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicableParty (or, with respect to facts or circumstances occurring at or prior to the Effective Timeobligation in clause (ii) above, on the same basis as set forth in directors and officers of the Company Charter and Company By-laws in effect on the date of this AgreementCompany), to the fullest extent permitted from time by applicable law. Notwithstanding the foregoing, indemnification and/or payment of expenses hereunder shall only be required to time under Applicable Lawthe extent that the Damages are not ultimately covered by insurance and actually paid to the Indemnified Party pursuant to such insurance coverage. For the avoidance of doubt, which provisions the advancement of expenses shall occur, if required hereunder, whether or not a determination has been made as to the availability of insurance coverage, and then, if a subsequent payment is made by the insurance carrier, those advanced expenses will be amended except remitted back to Parent or Surviving Corporation, as required by Applicable Law or except the case may be, to make changes permitted by Applicable Law that would enlarge the scope extent of the Company Indemnified Parties’ indemnification rights thereundersuch insurance payment.
(cb) In the event that If Parent, the Surviving Company 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 Company surviving corporation or entity of such consolidation or merger or merger, (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson or (iii) transfers, by means of a distribution, sale, assignment or other transaction, all of the stock of the Surviving Corporation or all or substantially all of its assets, to any person, then, and in each such case, Parent or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors successor and assigns assign of Parent or the Surviving Company, as applicable, assume Corporation assumes the obligations set forth in this Section 6.045.07, 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.
(dc) Prior to For six years after the Closing Date Effective Time, the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent Surviving Corporation shall, or and Parent shall cause the Surviving Company Corporation to, as of or after cause to be maintained in effect the Effective Time to, purchase a six (6) -year prepaid “tail” existing directors’ ' and officers’ ' liability insurance policy and fiduciary liability insurance policy for policies with an amount of coverage not less than one hundred percent (100%) of the Company amount of existing coverage and its current with at least the same scope of the existing coverage, or policies that are no less favorable to the Indemnified Parties, and former directors and officers who with an amount of coverage not less than one hundred percent (100%) of the amount of existing coverage, than the policies which are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that which occurred on at or before the Effective Time Time, so long as such policies are available for an annual premium which is no more than one hundred and fifty percent (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% 150%) of the aggregate current annual premium most recently paid by for the Company prior to the date of this Agreement (the “Maximum Amount”)existing policies; provided, further that if such policies are not available for an annual premium of no more than one hundred and fifty percent (150%) of the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amountcurrent annual premium, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force an amount and effect, scope as great as can be obtained for an annual premium of one hundred and continue to honor fifty percent (150%) of the obligations thereundercurrent annual premium shall be obtained.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 (i) 5.07 shall survive consummation of the Merger, (ii) Merger and are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties)party, his or her heirs and his or her representatives, and (iii) are . 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 otherwisethis Section 5.07.
Appears in 1 contract
Samples: Acquisition Agreement (Alloy Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its the Company Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”“), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (ix) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (iiy) the Surviving Company shall cooperate in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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 surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving Company, as applicable, Company shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, Company assume the obligations set forth in this Section 6.046.05.
(dc) Prior For a period of six years from and after the Effective Time, the Surviving Company 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 or its Subsidiaries or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company in either case, of not less than the existing coverage and having other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (with insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance), except that in no event shall the Surviving Company be required to pay with respect to such insurance policies in respect of any one policy year more than 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”), and if the Surviving Company is unable to obtain the insurance required by this Section 6.05 it shall obtain as much comparable insurance as possible for the years within such six-year period for an annual premium equal to the Maximum Amount, in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date the Company shall may, at its option (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”)Time; provided that in no event shall the cost of any such Pre-Paid Tail tail policy in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then . In the event the Company (after prior consultation with Parent) may obtainpurchases such tail coverage, or following Closing, Parent the Surviving Company shall obtain a Pre-Paid Tail with cease to have any obligations under the maximum coverage available for a total cost not to exceed the Maximum Amountfirst sentence of this Section 6.05(c). The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 6.05 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and the Company Subsidiaries under this Section 6.05.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time Closing now existing in favor of the current or former directors, officers or employees of the Company and and/or its Subsidiaries as provided in their respective certificates of incorporation or byOrganizational Documents (including the Company’s bye-laws (or comparable organizational documentslaws) and any indemnification or other similar agreements of between the Company or any of its SubsidiariesSubsidiaries and any Indemnitee, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. .
(b) From and after the Effective TimeClosing, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers Parent shall, and directors) Parent shall cause the Surviving Company agrees that it will indemnify to, indemnify, defend and hold harmless each individual who is as of the date of this AgreementClosing Date is, or who becomes at any time prior to the Effective TimeClosing Date was, a director or officer of the Company or any of its Subsidiaries or who is as of the date of this Agreement, (or who thereafter commences at any time prior to the Effective Time, Closing Date was) serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (including any other Person in which the Company or any of its Subsidiaries owns any equity interests), together with each such individual’s heirs, executors and administrators (each an “Indemnitee” and, collectively, the “Company Indemnified PartiesIndemnitees”), against ) with respect to all claims, liabilities, losses, liabilities, damages, judgments, inquiries, fines, penalties, costs (including amounts paid in settlement or compromise), and fees, costs and expenses, expenses (including attorneys’ fees and disbursements, incurred expenses of legal counsel) in connection with any actual or threatened Action, Action (whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)investigative), whenever asserted, based on or arising out of of, in whole or pertaining to in part, (i) the fact that the Company Indemnified Party an Indemnitee is or was an a director or officer or director of the Company or any such Subsidiary or other Person or (ii) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of its Subsidiaries the Company or is such Subsidiary or was other Person or taken at the request of the Company or such Subsidiary or such other Person (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (i) or (ii), at, or at any time prior to, the Closing (including any Action relating in whole or in part to the transactions contemplated by this Agreement or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under Applicable Law; provided, however, that no Indemnitee shall be indemnified against any liability that attaches to such Indemnitee by virtue of any rule of law as a result of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company or any of its Subsidiaries Subsidiaries, as a director or officer finally judicially determined by the Supreme Court of another PersonBermuda. Without limiting the foregoing, whether asserted or claimed prior to, at or from and after the Effective Time. In the event of any such Action, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification and (ii) the Surviving Company shall cooperate in the defense of any such matter.
(b) For a period of six (6) years following the Effective TimeClosing, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, cause the memorandum of association and bye-laws of the Surviving Company to contain provisions with respect to indemnification, advancement and reimbursement of expenses and exculpation of each Indemnitee with respect to facts or circumstances occurring on or prior to the Closing Date that are no less favorable to the Indemnitee than the provisions with respect to limitation of liability, indemnification, advancement and reimbursement of expenses and exculpation contained in the Company Organizational Documents in effect on the date of this Agreement, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified PartiesIndemnitees’ indemnification indemnification, exculpation and advancement of expenses rights thereunder.
(c) In the event that Parent, the Surviving Company or any of its their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or Surviving Company surviving corporation or entity of such consolidation consolidation, amalgamation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such casecase as a condition thereto, Parent or the Surviving CompanyCompany (or their respective successors or assigns), as applicable, shall cause proper provision such Person to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.04.
(d) Prior For a period of six (6) years commencing immediately after the Closing, the Surviving Company shall either (i) 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 (ii) provide substitute policies for the Surviving Company and its Subsidiaries covering acts or omissions occurring at or prior to the Closing Date with respect to individuals who are currently (and any individuals who prior to the Closing become) covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company shall and its Subsidiaries; provided, however, that in either case of clause (following reasonable consultation with Parenti) use commercially reasonable efforts to purchase the Pre-Paid Tail and (as defined belowii), or if such policies (A) shall provide not less than the existing coverage provided by and shall otherwise have other terms not less favorable to the individuals covered thereby than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company is unable with respect to purchase claims arising from facts or events that occurred on or before the Pre-Paid TailClosing Date and (B) shall be with insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance. In lieu of maintaining or obtaining such insurance policies, Parent shallprior to the Closing Date, or shall cause the Surviving Company to, as of or after the Effective Time to, may (at Parent’s expense) purchase a six (6) -year prepaid pre-paid, six-year “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers the individuals who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the CompanyCompany (and any individuals who prior to the Closing become covered), such tail to provide coverage in an amount not less than the existing coverage and to have other be on terms not less favorable and conditions that otherwise provide substantially the same benefits to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on at or before the Effective Time (Closing Date. Notwithstanding the “Pre-Paid Tail”); provided that foregoing, in no event shall Parent or the cost of any Surviving Company be required to pay a premium for such Pre-Paid Tail insurance in respect of any one policy year exceed 300% the aggregate in excess of the aggregate annual premium most recently paid by applicable amount set forth in Section 6.04(d) of the Company prior to Disclosure Letter. If the date foregoing insurance can only be obtained at a premium in excess of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then applicable amount set forth in Section 6.04(d) of the Company (after prior consultation with Parent) may obtain, or following ClosingDisclosure Letter, Parent shall obtain a Pre-Paid Tail or cause to be obtained directors’ and officers’ and fiduciary liability insurance policies covering the applicable individuals with the maximum most advantageous coverage available obtainable for a total cost not premium equal to exceed the Maximum Amountapplicable amount set forth in Section 6.04(d) of the Company Disclosure Letter. The Surviving Company shall (and Parent shall cause the Surviving Company to) at all times maintain such policies in full force and effecteffect in accordance with this Section 6.04(d), and continue to honor the obligations thereunder.
(e) From and after the Effective TimeClosing Date, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(f) The provisions of this Section 6.04 6.04, (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties)Indemnitee, his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have under the Organizational Documents of the Company or its Subsidiaries, by contract Contract or otherwise. The obligations of Parent and the Surviving Company under this Section 6.04 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.04 applies, unless (A) such termination or modification is required by Applicable Law or (B) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.04 applies shall be third party beneficiaries of this Section 6.04).
Appears in 1 contract
Samples: Merger Agreement (Belmond Ltd.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers Parent shall, and directors) shall cause the Surviving Company agrees that it will Corporation and the Second Surviving Entity to, indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of Parent, the Company or any of its their respective Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of Parent, the Company or any of its their respective Subsidiaries as a director or officer of another Person person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated herebyTransactions)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of Parent, the Company or any of its their respective Subsidiaries or is or was serving at the request of Parent, the Company or any of its their respective Subsidiaries as a director or officer of another Personperson or in respect of any acts or omissions in their capacities as such directors of officers occurring prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the same extent as such Indemnified Parties are indemnified as of the date of this Agreement by Parent or the Company pursuant to the Parent Company Certificate of Incorporation, the Parent Bylaws, Company Certificate of Incorporation, the Bylaws of the Company or the governing or organizational documents of any of their respective Subsidiaries and any indemnification agreements in existence as of the date of this Agreement (as applicable). In the event of any such Actionclaim, action, suit or proceeding, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days Corporation, the Second Surviving Entity or Parent to the same extent as such Indemnified Parties are entitled to advance of receipt expenses as of the date of this Agreement by the Surviving Company from Parent or the Company Indemnified Party pursuant to the Parent Certificate of a request thereforIncorporation, Parent Bylaws, Company Certificate of Incorporation, the Bylaws of the Company or the governing or organizational documents of any Subsidiary of the Company (as applicable); provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL DGCL, the Parent Certificate of Incorporation, the Parent Bylaws, the Company Certificate of Incorporation or the Surviving Bylaws of the Company’s certificate , and any indemnification agreements in existence as of incorporation or by-lawsthe date of this Agreement, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (ii) the Surviving Company Parent shall, and shall cause its Subsidiaries to, cooperate in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) . In the event that Parent, the Surviving Company Corporation, the Second Surviving 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 Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, and in each such case, Parent or Parent, the Surviving CompanyCorporation and/or the Second Surviving Entity, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or Parent, the Surviving CompanyCorporation and/or the Second Surviving Entity, as applicable, assume the obligations set forth in this Section 6.046.6.
(db) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as For a period of or six years from and after the Effective Time toTime, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its Second Surviving Entity shall either cause to be maintained in effect the current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the policies of directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company or any of their Subsidiaries or provide substitute polices for of not less than the existing coverage and have other terms not less favorable to the insured persons with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided Time, except that in no event shall Parent or the cost Second Surviving Entity be required to pay with respect to such insurance policies (or substitute insurance policies) of any such Pre-Paid Tail the Company in respect of any one policy year exceed more than 300% of the aggregate annual premium most recently paid payable by the Company for such insurance for the prior to the date of this Agreement twelve months (the “Maximum Amount”); provided, further that and if Parent or the total cost Surviving Corporation is unable to obtain the insurance required by this Section 6.6 it shall obtain as much comparable insurance as possible for maintaining the years within such Presix-Paid Tail exceeds year period for an annual premium equal to the Maximum Amount, then in respect of each policy year within such period; provided that in lieu of the foregoing, the Company (after may obtain at or prior consultation with Parent) to the Effective Time a six-year “tail” policy under the Company’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 obtainbe obtained for an amount that, or following Closingon an annual basis, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost does not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fc) The provisions of this Section 6.04 6.6 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person person may have by contract Contract or otherwise.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Fairmount Santrol Holdings Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) its Organizational Documents and any indemnification or other similar agreements Contracts of the Company or any of its SubsidiariesCompany, in each case case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and terms (it being agreed that after the Effective TimeClosing such rights shall be mandatory rather than permissive, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers if applicable), and directors) Parent shall cause the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this AgreementCorporation to perform their respective obligations thereunder. WITHOUT LIMITING THE FOREGOING, or who becomes prior to the Effective TimeFROM AND AFTER THE EFFECTIVE TIME, a director or officer of the Company or any of its Subsidiaries or who is as of the date of this AgreementTHE SURVIVING CORPORATION AGREES THAT IT WILL INDEMNIFY AND HOLD HARMLESS EACH INDIVIDUAL WHO IS AS OF THE DATE OF THIS AGREEMENT, or who thereafter commences prior to the Effective TimeOR WHO BECOMES PRIOR TO THE EFFECTIVE TIME, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person A DIRECTOR, OFFICER OR EMPLOYEE OF THE COMPANY OR WHO IS AS OF THE DATE OF THIS AGREEMENT, OR WHO THEREAFTER COMMENCES PRIOR TO THE EFFECTIVE TIME, SERVING AT THE REQUEST OF THE COMPANY AS A DIRECTOR, OFFICER OR EMPLOYEE OF ANOTHER PERSON (the THE “Company Indemnified PartiesCOMPANY INDEMNIFIED PARTIES”), against all claimsAGAINST ALL CLAIMS, lossesLOSSES, liabilitiesLIABILITIES, damagesDAMAGES, judgmentsJUDGMENTS, inquiriesINQUIRIES, finesFINES AND REASONABLE FEES, amounts paid in settlement and feesCOSTS AND EXPENSES, costs and expensesINCLUDING ATTORNEYS’ FEES AND DISBURSEMENTS, including attorneys’ fees and disbursementsINCURRED IN CONNECTION WITH ANY CLAIM, incurred in connection with any actual or threatened ActionWHETHER CIVIL, whether civilCRIMINAL, criminal, administrative, regulatory or investigative ADMINISTRATIVE OR INVESTIGATIVE (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time INCLUDING WITH RESPECT TO MATTERS EXISTING OR OCCURRING AT OR PRIOR TO THE EFFECTIVE TIME (including this Agreement and the transactions and actions contemplated herebyINCLUDING THIS AGREEMENT AND THE TRANSACTIONS AND ACTIONS CONTEMPLATED HEREBY)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another PersonARISING OUT OF OR PERTAINING TO THE FACT THAT THE COMPANY INDEMNIFIED PARTY IS OR WAS A DIRECTOR, whether asserted or claimed prior toOFFICER OR EMPLOYEE OF THE COMPANY OR IS OR WAS SERVING AT THE REQUEST OF THE COMPANY AS A DIRECTOR, at or after the Effective TimeOFFICER OR EMPLOYEE OF ANOTHER PERSON, WHETHER ASSERTED OR CLAIMED PRIOR TO, AT OR AFTER THE EFFECTIVE TIME, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. In the event of any such ActionClaim covered under this Section 6.09, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action Claim from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request thereforParent; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL applicable Law or the Surviving CompanyCorporation’s certificate of incorporation or by-lawsOrganizational Documents, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (ii) the Surviving Company shall cooperate in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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, Parent or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.04.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(f) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.and
Appears in 1 contract
Samples: Company Takeover Proposal
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its the Company Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director or officer of another Person (the “"Company Indemnified Parties”"), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ ' fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (ix) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s 's certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (iiy) the Surviving Company shall cooperate in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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 surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving Company, as applicable, Company shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, Company assume the obligations set forth in this Section 6.046.05.
(dc) Prior For a period of six years from and after the Effective Time, the Surviving Company 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 or its Subsidiaries or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors' and officers' and fiduciary liability insurance coverage currently maintained by the Company in either case, of not less than the existing coverage and having other terms not less favorable to the insured persons than the directors' and officers' liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (with insurance carriers having at least an "A" rating by A.M. Best with respect to directors' and officers' liability insurance and fiduciary liability insurance), except that in no event shall the Surviving Company be required to pay with respect to such insurance policies in respect of any one policy year more than 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the "Maximum Amount"), and if the Surviving Company is unable to obtain the insurance required by this Section 6.05 it shall obtain as much comparable insurance as possible for the years within such six-year period for an annual premium equal to the Maximum Amount, in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date the Company shall may, at its option (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “"tail” " directors’ ' and officers’ ' liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ ' and officers’ ' and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ ' and officers’ ' liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”)Time; provided that in no event shall the cost of any such Pre-Paid Tail tail policy in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then . In the event the Company (after prior consultation with Parent) may obtainpurchases such tail coverage, or following Closing, Parent the Surviving Company shall obtain a Pre-Paid Tail with cease to have any obligations under the maximum coverage available for a total cost not to exceed the Maximum Amountfirst sentence of this Section 6.05(c). The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 6.05 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and the Company Subsidiaries under this Section 6.05.
Appears in 1 contract
Samples: Merger Agreement (PVH Corp. /De/)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, directors or officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates articles of incorporation or by-laws bylaws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its the Company Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their termsterms (it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and Parent shall cause the Company and the Company Subsidiaries to perform its obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director or officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (ix) each Company Indemnified Party will be entitled to advancement of reasonable expenses of counsel reasonably selected by the Indemnified Parties, incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) 10 Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person person to whom expenses are advanced provides an undertaking, if and any only to the extent required by the DGCL MBCA or the Surviving Company’s certificate articles of incorporation or by-laws, bylaws (or comparable organizational documents) to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (iiy) the Surviving Company shall cooperate in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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 surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving Company, as applicable, Company shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, Company assume the obligations set forth in this Section 6.046.05.
(dc) Prior For a period of six years from and after the Effective Time, the Surviving Company 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 or its Subsidiaries or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, in either case, of not less than the existing coverage and having other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (with insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance), except that in no event shall the Surviving Company be required to pay with respect to such insurance policies in respect of any one policy year more than 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”), and if the Surviving Company is unable to obtain the insurance required by this Section 6.05(c) it shall obtain as much comparable insurance as possible for the years within such six-year period for an annual premium equal to the Maximum Amount, in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date the Company shall (following reasonable consultation with may, and at Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent ’s request shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”)Time; provided that in no event shall the cost of any such Pre-Paid Tail tail policy in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 6.05 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
(e) From and after the Effective Time, Parent shall cause the Surviving Company to perform all of the obligations of the Surviving Company under this Section 6.05.
Appears in 1 contract
Samples: Merger Agreement (Mocon Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees and Sub agree that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions arising or occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or officers, employees and agents of the Company and its Subsidiaries subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable similar organizational documents) shall be assumed and any indemnification or other similar agreements of performed by the Company or any of its SubsidiariesSurviving Corporation, in each case as in effect on without further action, at the date of this Agreement, Effective Time and shall survive the Merger and shall continue in full force and effect in accordance with their terms. From Parent and after Sub agree that any existing indemnification agreements between the Company and any current or former director, officer, employee or agent of the Company or any of its subsidiaries shall be assumed and performed by the Surviving Corporation, without any further action, at the Effective TimeTime and shall survive the Merger and continue in full force and effect in accordance with their terms. In the event of any threatened or actual claim, action, suit, demand, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, demand, proceeding or investigation in which any person who is now, or has been at any time prior to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreementhereof, or who becomes prior to the Effective Time, a director director, officer, employee, fiduciary or officer agent of the Company or any of its Subsidiaries or who is as subsidiary of the date of this AgreementCompany (the “Indemnified Parties”) is, or who thereafter commences prior is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the Effective Timefact that he is or was a director, serving at the request officer, employee, fiduciary or agent of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director subsidiary of the Company or any of its Subsidiaries Company, or is or was serving at the request of the Company or any subsidiary of its Subsidiaries the Company as a director director, officer, employee, fiduciary or officer agent of another Personcorporation, partnership, joint venture, trust or other enterprise or (ii) with respect to the directors and officers of the Company, the negotiation, execution or performance of this Agreement or any of the transactions contemplated hereby, whether in any case asserted or claimed prior to, at arising before or after the Effective Time, the parties hereto agree to cooperate and use their commercially reasonable efforts to defend against and respond thereto. In It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time, Parent shall cause the Surviving Corporation to, and the Surviving Corporation shall, indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnified Party (or, with respect to the obligation in clause (ii) above, the directors and officers of the Company) against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys’ fees and expenses), judgments, fines and amounts paid in settlement (collectively, “Damages”) in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigation, and in the event of any such Actionthreatened or actual claim, action, suit, demand, proceeding or investigation (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in whether asserted or arising before or after the defense of any such Action from Effective Time), the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertakingCompany, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification and (ii) the Surviving Company shall cooperate in the defense of any such matter.
(b) For a period of six (6) years following after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company Corporation to, maintain and the Surviving Corporation shall, promptly pay expenses in effect advance of the provisions in its certificate final disposition of incorporation and by-laws any claim, suit, proceeding or investigation to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicableParty (or, with respect to facts or circumstances occurring at or prior to the Effective Timeobligation in clause (ii) above, on the same basis as set forth in directors and officers of the Company Charter and Company By-laws in effect on the date of this AgreementCompany), to the fullest extent permitted from time by applicable law. Notwithstanding the foregoing, indemnification and/or payment of expenses hereunder shall only be required to time under Applicable Lawthe extent that the Damages are not ultimately covered by insurance and actually paid to the Indemnified Party pursuant to such insurance coverage. For the avoidance of doubt, which provisions the advancement of expenses shall occur, if required hereunder, whether or not a determination has been made as to the availability of insurance coverage, and then, if a subsequent payment is made by the insurance carrier, those advanced expenses will be amended except remitted back to Parent or Surviving Corporation, as required by Applicable Law or except the case may be, to make changes permitted by Applicable Law that would enlarge the scope extent of the Company Indemnified Parties’ indemnification rights thereundersuch insurance payment.
(cb) In the event that If Parent, the Surviving Company 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 Company surviving corporation or entity of such consolidation or merger or merger, (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson or (iii) transfers, by means of a distribution, sale, assignment or other transaction, all of the stock of the Surviving Corporation or all or substantially all of its assets, to any person, then, and in each such case, Parent or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors successor and assigns assign of Parent or the Surviving Company, as applicable, assume Corporation assumes the obligations set forth in this Section 6.045.07, 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.
(dc) Prior to For six years after the Closing Date Effective Time, the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent Surviving Corporation shall, or and Parent shall cause the Surviving Company Corporation to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently cause to be maintained by the Company, such tail to provide coverage in an amount not less than effect the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance policies with an amount of coverage not less than one hundred percent (100%) of the amount of existing coverage and with at least the same scope of the existing coverage, or policies that are no less favorable to the Indemnified Parties, and with an amount of coverage not less than one hundred percent (100%) of the amount of existing coverage, than the policies which are currently maintained by the Company Company, with respect to claims arising from facts or events that which occurred on at or before the Effective Time Time, so long as such policies are available for an annual premium which is no more than one hundred and fifty percent (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% 150%) of the aggregate current annual premium most recently paid by for the Company prior to the date of this Agreement (the “Maximum Amount”)existing policies; provided, further that if such policies are not available for an annual premium of no more than one hundred and fifty percent (150%) of the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amountcurrent annual premium, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force an amount and effect, scope as great as can be obtained for an annual premium of one hundred and continue to honor fifty percent (150%) of the obligations thereundercurrent annual premium shall be obtained.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 (i) 5.07 shall survive consummation of the Merger, (ii) Merger and are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties)party, his or her heirs and his or her representatives, and (iii) are . 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 otherwisethis Section 5.07.
Appears in 1 contract
Samples: Acquisition Agreement (Alloy Inc)
Indemnification, Exculpation and Insurance. (a) For a period of six (6) years from the Effective Time, Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now (whether asserted or claimed prior to, at or after the Effective Time) existing as of the date of this Agreement in favor of the current or any former directors, directors or officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation governing or by-laws (or comparable organizational documents) documents and any indemnification or other similar agreements between such Persons and set forth in Section 7.05(a) of the Company or any of its SubsidiariesDisclosure Letter, in each case as in effect on the forms made available by the Company to Parent or Parent’s Representatives prior to the date of this Agreement, shall continue in full force and effect in accordance with their terms, and each of the Company and the Company Subsidiaries shall perform its obligations thereunder to the fullest extent available under Delaware law. From Without limiting the foregoing, during the period commencing at the Effective Time and after ending on the sixth (6th) anniversary of the Effective Time, the Surviving Corporation shall, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will available under Delaware law, indemnify and hold harmless each individual who was prior to the date of this Agreement, is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), in such capacity, against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursementsdisbursements (“Losses”), incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (Time, including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director or officer or director of the Company or any of its Subsidiaries Company Subsidiary at or prior to the Effective Time or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another PersonPerson at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (ix) to the fullest extent available under Delaware law, each Company Indemnified Party will be entitled to advancement of reasonable and documented out-of-pocket expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company Corporation in connection with matters for which such Indemnified Persons are eligible to be indemnified pursuant to this Section 7.05(a) within ten (10) Business Days of 15 days after receipt by the Surviving Company from the Company Indemnified Party Parent of a written request thereforfor such advance; provided provided, that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or undertaking in favor of the Surviving Company’s certificate of incorporation or by-laws, Corporation to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification pursuant to this Section 7.05(a) and (iiy) the Surviving Company Corporation shall reasonably cooperate in the defense of any such matter.
(b) For a period of six (6) years following from and after the Effective Time, Parent and the Surviving Company shall, and Parent Corporation shall either cause the Surviving Company to, maintain to be maintained in effect the provisions in its certificate current policies of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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, Parent or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.04.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy maintained by the Company or the Company Subsidiaries, as the case may be, or provide substitute policies for the Company and its the Company Subsidiaries and their current and former directors and officers who are currently covered by the directors’ and officers’ liability insurance currently maintained by the Company or the Company Subsidiaries, in either case, with reference to the policies made available by the Company to Parent or Parent’s Representatives prior to the date of this Agreement, in an amount not less than the existing coverage and fiduciary having other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance currently maintained by the Company or the Company Subsidiaries with respect to claims arising from facts or events that occurred at or before the Effective Time (with insurance carriers having at least an “A-” rating by A.M. Best with respect to directors’ and officers’ liability insurance), except that in no event shall Parent or the Surviving Corporation be required to pay with respect to such insurance policies in respect of any one (1) policy year more than 250% of the greater of (i) the aggregate annual premium of the policy currently in effect on the date of this Agreement and (ii) the aggregate annual premium of the policy in effect prior to Closing, a copy of the proposal for which has been made available to Parent (the “Maximum Amount”), and if the Surviving Corporation is unable to obtain the insurance required by this Section 7.05(b) it shall obtain as much comparable insurance as possible for the years within such six (6)-year period for an annual premium equal to the Maximum Amount, in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date the Company may, at its option, purchase a “tail” directors’ and officers’ liability insurance policy for the Company and the Company Subsidiaries and their current and former directors and officers who are currently covered by the directors’ and officers’ liability insurance coverage currently maintained by the CompanyCompany or the Company Subsidiaries, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company or the Company Subsidiaries with respect to claims arising from facts or events that occurred on at or before the Effective Time (the “Pre-Paid Tail”)Time; provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Parent and the Surviving Company Corporation shall maintain such policies in full force and effect, effect and continue to honor the obligations thereunder.
(ec) From In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and after is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, the Surviving Corporation shall cause proper provision to be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 7.05.
(d) Notwithstanding anything herein to the contrary, in the event that any claim for indemnification described in this Section 7.05 is asserted or made on or prior to the sixth (6th) anniversary of the Effective Time, Parent all rights to indemnification herein in respect of such claim shall guarantee continue until the prompt payment final disposition of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04such claim.
(fe) The provisions of this Section 6.04 7.05 (i) shall survive consummation of the MergerMerger and the other transactions contemplated hereby, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties)Party, his or her heirs heirs, successors and his or her representativesassigns, each of which are express third-party beneficiaries hereof and (iii) are in addition to, and not in substitution for, any other rights to indemnification indemnification, advancement of expenses, exculpation or contribution that any such Person may have by contract or otherwise.
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Indemnification, Exculpation and Insurance. (a) From and after the Effective Time, Parent agrees shall, and shall cause the Company and the Surviving Corporation to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company or of a Subsidiary of the Company (each, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any claim, suit, action, proceeding or investigation (whether civil, criminal, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under (A) or (B), at, or at any time prior to, the Effective Time (including any claim, suit, action, proceeding or investigation relating in whole or in part to the transactions contemplated by this Agreement), to the fullest extent permitted under applicable Law, and (ii) assume all rights obligations of the Company and such Subsidiaries to indemnification, advancement the Indemnitees in respect of expenses indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates (x) the Company’s certificate of incorporation or and by-laws and the organizational documents of such Subsidiaries as currently in effect and (or comparable organizational documentsy) and any the form of indemnification or other similar agreements attached as Schedule 7.7(a), which shall survive the consummation of the Company or any of its Subsidiaries, in each case as in effect on the date of transactions contemplated by this Agreement, shall Agreement and continue in full force and effect in accordance with their respective terms. From Without limiting the foregoing, Parent, from and after the Effective Time, shall cause the certificate of incorporation and by-laws of the Surviving Corporation to contain provisions no less favorable to the fullest extent permitted by Applicable Law (including Indemnitees with respect to the fullest extent authorized or permitted by any amendments to or replacements limitation of the DGCL adopted after the date liabilities of this Agreement that increase the degree to which a corporation may indemnify its directors and officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is indemnification than are set forth as of the date of this AgreementAgreement in the Company’s certificate of incorporation and by-laws, which provisions shall not be amended, repealed or who becomes prior to otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, from and after the Effective Time, a director or officer of Parent shall, and shall cause the Company and the Surviving Corporation to, pay any expenses (including fees and expenses of legal counsel) of any Indemnitee under this Section 7.7 (including in connection with enforcing the indemnity and other obligations referred to in 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) An Indemnitee shall have the right, but not the obligation, to assume and control the defense of any litigation, claim or proceeding relating to any acts or omissions covered under this Section 7.7 (each, a “Claim”) with counsel selected by the Indemnitee, which counsel shall be reasonably acceptable to Parent; provided, however, that Parent shall be permitted to participate in the defense of such Claim at its Subsidiaries own expense. Each of Parent, the Company, the Surviving Corporation and the Indemnitees shall cooperate in the defense of any Claim and shall provide access to properties and individuals as reasonably requested and furnish or who is cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as of may be reasonably requested in connection therewith.
(c) For the date of this Agreement, or who thereafter commences prior to six-year period commencing immediately after the Effective Time, serving at Parent shall maintain in effect the request of the Company Company’s current directors’ and officers’ liability insurance covering acts or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or omissions occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification and (ii) the Surviving Company shall cooperate in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts those persons who are currently (and any additional persons who prior to the Effective Time become) covered by the Company’s directors’ and officers’ liability insurance policy on terms and scope with respect to such coverage, and in amount, not less favorable to such individuals than those of such policy in effect on the date hereof (or circumstances Parent may substitute therefore policies, issued by reputable insurers, of at least the same coverage with respect to matters occurring at or prior to the Effective Time). In no event will Parent or the Surviving Corporation be required to expend for each covered year an amount in excess of 250% of the current annual premium for such insurance (the “Maximum Premium”). If such insurance coverage is terminated, on cancelled, cannot be obtained at all, or can only be obtained at an annual premium in excess of the same basis Maximum Premium, the Surviving Corporation will maintain such Insurance as set forth can be obtained for the remainder of the six-year period for a premium not in excess of the Company Charter and Company By-laws in effect on the date Maximum Premium.
(d) The provisions of this AgreementSection 7.7 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs and his or her representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. The obligations of Parent and the fullest extent permitted from time to time Surviving Corporation under Applicable Law, which provisions this Section 7.7 shall not be amended except terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 7.7 applies unless (x) such termination or modification is required by Applicable applicable Law or except (y) the affected Indemnitee shall have consented in writing to make changes permitted by Applicable Law such termination or modification (it being expressly agreed that would enlarge the scope Indemnitees to whom this Section 7.7 applies shall be third party beneficiaries of the Company Indemnified Parties’ indemnification rights thereunderthis Section 7.7).
(ce) In the event that Parent, the Surviving Company 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 Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving Company, as applicable, shall cause proper provision to shall be made so that the successors and assigns of Parent or and the Surviving Company, as applicable, assume Corporation shall be responsible for all of the obligations thereof set forth in this Section 6.047.7.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(f) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will TopCo shall indemnify and hold harmless each individual who is as of the date of this AgreementOriginal Signing Date, or who becomes prior to the Effective Time, a director or officer of the Company RockTenn or MWV or any of its Subsidiaries their subsidiaries or who is as of the date of this AgreementOriginal Signing Date, or who thereafter commences prior to the Effective Time, serving at the request of the Company RockTenn or MWV, as applicable, or any of its Subsidiaries their respective subsidiaries as a director or officer of another Person person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company RockTenn or MWV, as applicable, or any of its Subsidiaries their respective subsidiaries or is or was serving at the request of the Company RockTenn or MWV, as applicable, or any of its Subsidiaries their respective subsidiaries as a director or officer of another Personperson or in respect of any acts or omissions in their capacities as such directors of officers occurring prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the same extent as such Indemnified Parties are indemnified as of the Original Signing Date by RockTenn pursuant to the RockTenn Articles of Incorporation, the By-laws of RockTenn or the governing or organizational documents of any subsidiary of RockTenn, or by MWV pursuant to the MWV Certificate of Incorporation, the By-laws of MWV or the governing organizational documents of any subsidiary of MWV, as applicable, or and any indemnification agreements in existence as of the Original Signing Date. In the event of any such Actionclaim, action, suit or proceeding, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from TopCo to the Surviving Company within ten (10) Business Days same extent as such Indemnified Parties are entitled to advance of receipt expenses as of the Original Signing Date by RockTenn pursuant to the Surviving Company from RockTenn Articles of Incorporation, the Company Indemnified Party By-laws of a request thereforRockTenn or the governing or organizational documents of any subsidiary of RockTenn, or by MWV pursuant to the MWV Certificate of Incorporation, the By-laws of MWV or the governing or organizational documents of any subsidiary of MWV, as applicable, and any indemnification agreements in existence as of the Original Signing Date; provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL GBCC, the DGCL, the RockTenn Articles of Incorporation or the Surviving Company’s certificate By-laws of incorporation RockTenn, or bythe MWV Certificate of Incorporation or the By-lawslaws of MWV, as applicable, and any indemnification agreements in existence as of the Original Signing Date, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (ii) the Surviving Company TopCo shall, and shall cause its subsidiaries to, cooperate in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) . In the event that ParentTopCo, the MWV Surviving Company or RockTenn 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 Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, and in each such case, Parent or the TopCo, MWV Surviving CompanyCompany and/or RockTenn Surviving Corporation, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the TopCo, MWV Surviving CompanyCompany and/or RockTenn Surviving Corporation, as applicable, assume the obligations set forth in this Section 6.046.4.
(db) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as For a period of or six years from and after the Effective Time toTime, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for TopCo shall either cause to be maintained in effect the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the policies of directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by RockTenn or MWV or any of their subsidiaries or provide substitute polices for of not less than the Company existing coverage and have other terms not less favorable to the insured persons with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided Time, except that in no event shall the cost TopCo be required to pay with respect to such insurance policies (or substitute insurance policies) (i) of any such Pre-Paid Tail RockTenn in respect of any one policy year exceed more than 300% of the aggregate annual premium most recently paid payable by RockTenn for such insurance for the Company prior to the date of this Agreement year ending February 28, 2015 (the “RockTenn Maximum Amount”); provided, further that and if TopCo is unable to obtain the total cost insurance required by this Section 6.4 it shall obtain as much comparable insurance as possible for maintaining the years within such Presix-Paid Tail exceeds year period for an annual premium equal to the RockTenn Maximum Amount, then in respect of each policy year within such period; provided that in lieu of the Company (after foregoing, RockTenn may obtain at or prior consultation with Parent) to the Effective Time a six-year “tail” policy under RockTenn’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 obtainbe obtained for an amount that, on an annual basis, does not exceed the RockTenn Maximum Amount, or following Closing(ii) of MWV in respect of any one policy year more than 300% of the annual premium payable by MWV for such insurance for the year ending May 18, Parent 2015 (the “MWV Maximum Amount”), and if TopCo is unable to obtain the insurance required by this Section 6.4 it shall obtain as much comparable insurance as possible for the years within such six-year period for an annual premium equal to the MWV Maximum Amount, in respect of each policy year within such period; provided that in lieu of the foregoing, MWV may obtain at or prior to the Effective Time a Presix-Paid Tail with year “tail” policy under MWV’s existing directors and officers insurance policy providing equivalent coverage to that described in the maximum coverage available preceding sentence if and to the extent that the same may be obtained for a total cost an amount that, on an annual basis, does not to exceed the MWV Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fc) The provisions of this Section 6.04 6.4 (i) shall survive consummation of the MergerMergers, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person person may have by contract or otherwise.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, the Parent shall, and shall cause the Surviving Company to, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify applicable Legal Requirements, indemnify, defend and hold harmless harmless, and provide advancement of expenses to, each individual Person who is as of the date of this Agreement, now or who becomes prior to the Effective Time, a director or officer of the Company or at any of its Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or time prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby))was, arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries (each an “Indemnitee” and, collectively, the “Indemnified Parties”) against all losses, claims, damages, costs, expenses, liabilities or judgments or amounts that are paid in settlement of or in connection with any investigation (formal or informal), claim, proceeding or action that is based in whole or in part on, or arises in whole or in part out of, the fact that such Person is or was serving at the request a director or officer of the Company or any of its Subsidiaries as a director Subsidiaries, and pertaining to any matter existing or officer of another Personoccurring, or any acts or omissions occurring, at or prior to the Effective Time, whether asserted or claimed prior to, or at or after after, the Effective Time. In the event of any such ActionTime (including matters, acts or omissions occurring in connection with
(i) each Company Indemnified Party will the approval of or entering into this Agreement or the consummation of the Transactions or (ii) the Options Matters) to the same extent such Persons are entitled to be entitled indemnified, defended, held harmless or have the right to advancement of expenses incurred as of the date of this Agreement by the Company or any of its Subsidiaries pursuant to applicable Legal Requirements, the Company Charter Documents and indemnification agreements of the Company and its Subsidiaries, if any, in existence on the defense date hereof with any directors or officers of any such Action from the Company and its Subsidiaries disclosed on Section 5.14 of the Company Disclosure Letter. The Articles of Association of the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled will contain provisions with respect to indemnification and (ii) exemption that are at least as favorable to the Surviving Company shall cooperate Indemnified Parties as those contained in the defense Company Articles of Association as in effect on the date hereof, which provisions will not be amended, repealed or otherwise modified for a period of seven years from the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Persons, unless such mattermodification is required by Legal Requirement.
(b) For At the Company’s election in consultation with Parent, (i) the Company shall use its reasonable best efforts to obtain prior to the Effective Time prepaid “tail” insurance policies with a claims period of six (6) seven years following from the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, Time with respect to directors’ and officers’ liability indemnification and insurance in amount and scope (and containing terms and conditions that are in the aggregate) no less favorable to the Indemnified Parties than the Company’s existing directors’ and officers’ liability insurance policies disclosed on Section 5.14(b) of the Company Disclosure Letter (the “Current Policies”) for claims arising from facts or circumstances occurring at events that occurred on or prior to the Effective Time (including matters, acts or omissions occurring in connection with (i) the approval of or entering into this Agreement or the consummation of the Transactions or (ii) the Options Matters) (collectively, a “Tail Policy”) (provided that the Company shall not pay a premium of more than 400% of the annual premium paid by the Company for the Current Policies as of the date hereof (the “Tail Cap”) for such “tail” policies) or (ii) if the Company shall not have obtained such tail policy, for a period of seven years after the Effective Time, on Parent shall cause to be maintained in effect directors’ and officers’ liability insurance policies with respect to claims arising from facts or events that occurred prior to the same basis as set forth Effective Time (including matters, acts or omissions occurring in connection with (i) the approval of or entering into this Agreement or the consummation of the Transactions, or (ii) the Options Matters) in amount and scope (and containing terms and conditions that are in the aggregate) no less favorable to the Indemnified Parties than the Current Policies; provided, that if the annual premiums for such policies at any time during such period exceed 200% of the annual premium paid by the Company Charter and Company By-laws in effect on for the Current Policies as of the date hereof (the “Current Premium”), Parent shall be required to provide such coverage as will then be available at an annual premium equal to 200% of the Current Premium; provided, further, that Parent may satisfy its obligations pursuant to this Agreementclause (ii) by obtaining a Tail Policy or, if a Tail Policy cannot be obtained without paying an aggregate premium greater than the Tail Cap, prepaid tail policies with such coverage as will then be available for an aggregate premium equal to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunderTail Cap.
(c) In If that the event that Parent, Parent or the Surviving Company 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 Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, the Parent or the Surviving Company, as applicable, shall cause proper provision provisions to be made so that the successors and assigns of the Parent or the Surviving Company, as applicable, Company assume the obligations set forth in this Section 6.04.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount5.14. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(f) The provisions of this Section 6.04 5.14 are (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will shall be enforceable by, each indemnified or insured party (including the Company Indemnified Parties)Indemnitee, 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 Contract or otherwise. The obligations of the Parent and the Surviving Company under this Section 5.14 shall not be terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 5.14 applies without the express written consent of such affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 5.14 applies shall be third party beneficiaries of this Section 5.14).
Appears in 1 contract
Samples: Merger Agreement (Sandisk Corp)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will HoldCo shall indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company Diamond or Orion or any of its Subsidiaries their subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company Diamond or Orion, as applicable, or any of its Subsidiaries their respective subsidiaries as a director or officer of another Person person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company Diamond or Orion, as applicable, or any of its Subsidiaries their respective subsidiaries or is or was serving at the request of the Company Diamond or Orion, as applicable, or any of its Subsidiaries their respective subsidiaries as a director or officer of another Personperson or in respect of any acts or omissions in their capacities as such directors of officers occurring prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the same extent as such Indemnified Parties are indemnified as of the date of this Agreement by Diamond pursuant to the Diamond Certificate of Incorporation, the By-laws of Diamond or the governing or organizational documents of any subsidiary of Diamond, or by Orion pursuant to the Orion Certificate of Incorporation, the By-laws of Orion or the governing organizational documents of any subsidiary of Orion, as applicable, or and any indemnification agreements in existence as of the date of this Agreement. In the event of any such Actionclaim, action, suit or proceeding, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from HoldCo to the Surviving Company within ten (10) Business Days same extent as such Indemnified Parties are entitled to advance of receipt expenses as of the date of this Agreement by Diamond pursuant to the Surviving Company from Diamond Certificate of Incorporation, the Company Indemnified Party By-laws of a request thereforDiamond or the governing or organizational documents of any subsidiary of Diamond, or by Orion pursuant to the Orion Certificate of Incorporation, the By-laws of Orion or the governing or organizational documents of any subsidiary of Orion, as applicable, and any indemnification agreements in existence as of the date of this Agreement; provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL DGCL, the Diamond Certificate of Incorporation or the Surviving Company’s certificate By-laws of incorporation Diamond, or bythe Orion Certificate of Incorporation or the By-lawslaws of Orion, as applicable, and any indemnification agreements in existence as of the date of this Agreement, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (ii) the Surviving Company HoldCo shall, and shall cause its subsidiaries to, cooperate in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) . In the event that ParentHoldCo, the Orion Surviving Company Corporation or Diamond 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 Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, and in each such case, Parent or the HoldCo, Orion Surviving CompanyCorporation and/or Diamond Surviving Corporation, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the HoldCo, Orion Surviving CompanyCorporation and/or Diamond Surviving Corporation, as applicable, assume the obligations set forth in this Section 6.046.4.
(db) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as For a period of or six years from and after the Effective Time toTime, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for HoldCo shall either cause to be maintained in effect the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the policies of directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by Diamond or Orion or any of their subsidiaries or provide substitute polices for of not less than the Company existing coverage and have other terms not less favorable to the insured persons with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided Time, except that in no event shall the cost HoldCo be required to pay with respect to such insurance policies (or substitute insurance policies) (i) of any such Pre-Paid Tail Diamond in respect of any one policy year exceed more than 300% of the aggregate annual premium most recently paid payable by Diamond for such insurance for the Company prior to the date of this Agreement twelve months (the “Diamond Maximum Amount”); provided, further that and if HoldCo is unable to obtain the total cost insurance required by this Section 6.4 it shall obtain as much comparable insurance as possible for maintaining the years within such Presix-Paid Tail exceeds year period for an annual premium equal to the Diamond Maximum Amount, then in respect of each policy year within such period; provided that in lieu of the Company (after foregoing, Diamond may obtain at or prior consultation with Parent) to the Effective Time a six-year “tail” policy under Diamond’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 obtainbe obtained for an amount that, on an annual basis, does not exceed the Diamond Maximum Amount, or following Closing(ii) of Orion in respect of any one policy year more than 300% of the annual premium payable by Orion for such insurance for the prior twelve months (the “Orion Maximum Amount”), Parent and if HoldCo is unable to obtain the insurance required by this Section 6.4 it shall obtain as much comparable insurance as possible for the years within such six-year period for an annual premium equal to the Orion Maximum Amount, in respect of each policy year within such period; provided that in lieu of the foregoing, Orion may obtain at or prior to the Effective Time a Presix-Paid Tail with year “tail” policy under Orion’s existing directors and officers insurance policy providing equivalent coverage to that described in the maximum coverage available preceding sentence if and to the extent that the same may be obtained for a total cost an amount that, on an annual basis, does not to exceed the Orion Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fc) The provisions of this Section 6.04 6.4 (i) shall survive consummation of the MergerMergers, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person person may have by contract or otherwise.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all All rights to indemnification, advancement of expenses indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, directors or officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any existing indemnification agreements or other similar agreements arrangements of the Company or any of and its Subsidiaries, in each case as in effect on Subsidiaries shall survive the date of this Agreement, Merger and shall continue in full force and effect in accordance with their terms. From , and shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time, Time in any manner that would adversely affect the rights thereunder of such individuals for acts or omissions occurring at or prior to the fullest extent permitted by Applicable Law Effective Time.
(b) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including to the fullest extent authorized any such claim, action suit, proceeding or permitted by investigation in which any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who is as of (the date of this Agreement"INDEMNIFIED PARTIES"), is, or who thereafter commences prior is threatened to the Effective Timebe, serving at the request of the Company made a party based in whole or any of its Subsidiaries as a director in part on, or officer of another Person (the “Company Indemnified Parties”)arising in whole or in part out of, against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to (i) the fact that the Company Indemnified Party he is or was an a director, officer or director employee of the Company or any of its Subsidiaries or is their respective predecessors or was serving at the request of the Company (ii) this Agreement or any of its Subsidiaries as a director or officer of another Personthe transactions contemplated hereby, whether in any case asserted or claimed prior to, at arising before or after the Effective Time. In , the event of any such Action, (i) each Company Indemnified Party will be entitled parties hereto agree to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person cooperate and use their best efforts to whom expenses are advanced provides an undertaking, if defend against and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification and (ii) the Surviving Company shall cooperate in the defense of any such matterrespond thereto.
(bc) For a period of six (6) years following after the Effective Time, the Surviving Company shall, and Parent Corporation shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation Company's current directors' and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts officers' liability insurance covering acts or circumstances omissions occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, Time with respect to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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, Parent or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.04.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers those Persons who are currently covered by the Company's directors’ ' and officers’ and fiduciary ' liability insurance coverage currently maintained by the Company, policy on terms with respect to such tail to provide coverage in an amount not less than the existing coverage and to have other terms not amount no less favorable to the insured persons Company's directors and officers currently covered by such insurance than those of such policy in effect on the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by date hereof; provided, that the Company Surviving Corporation may substitute therefor policies of Parent or its Subsidiaries (including self insurance) containing terms with respect to claims arising from facts coverage and amount no less favorable to such directors or events that occurred on or before the Effective Time (the “Pre-Paid Tail”)officers; provided provided, further, that in no event shall the cost Surviving Corporation be required to pay aggregate premiums for insurance under this Section 5.5(c) in excess of any such Pre-Paid Tail in respect of any one policy year exceed 300150% of the aggregate annual premium most recently premiums paid by the Company prior to the date of this Agreement (the “Maximum Amount”); providedin 2003 on an annualized basis for such purpose and, further that if the total cost for maintaining annual premiums of such Pre-Paid Tail exceeds insurance coverage exceed such amount, the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent Surviving Corporation shall be obligated to use its reasonable best efforts obtain a Pre-Paid Tail policy with the maximum greatest coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain exceeding such policies in full force and effect, and continue to honor the obligations thereunderamount.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 (i) 5.5 shall survive consummation of the Merger, (ii) Effective Time and are intended to be for the benefit of, and will shall be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), Party and other Person named herein and his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Merger Agreement (PNC Financial Services Group Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) Organizational Documents and any indemnification or other similar agreements Contracts of the Company or any Company Subsidiary set forth on Section 6.09(a) of its Subsidiariesthe Company Disclosure Letter, in each case case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their termsterms to the extent provided in the following sentence. From and after the Effective TimeTime and for a period of at least six (6) years thereafter, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company Corporation agrees that it will (and Parent shall cause the Surviving Corporation to) indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its Subsidiaries Company Subsidiary or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person (collectively, the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened ActionClaim, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such ActionClaim, (i) each Company Indemnified Party will will, to the fullest extent permitted under applicable Law, be entitled to advancement of expenses incurred in the defense of any such Action Claim from the Surviving Company Corporation within ten (10) Business Days of after receipt by the Surviving Company Corporation from the Company Indemnified Party of a request therefor; therefor (provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, undertaking to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification indemnification), and (ii) the Surviving Company Corporation shall cooperate in good faith in the defense of any such matter.
. In addition, during the period commencing at the Effective Time and ending on the sixth (b6th) For a period anniversary of six (6) years following the Effective Time, the Surviving Company shall, Corporation will (and Parent shall will cause the Surviving Company Corporation to) cause the certificates of incorporation, maintain in effect bylaws and other similar organizational documents of the Surviving Corporation to contain provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring indemnification, exculpation and the advancement of expenses that are at or prior to least as favorable as the Effective Timeindemnification, on the same basis as exculpation and advancement of expenses provisions set forth in the Company Charter and Company By-laws in effect on Organizational Documents as of the date of this Agreement. During such six-year period, to the fullest extent permitted from time to time under Applicable Law, which such provisions shall may not be repealed, amended or otherwise modified in any manner except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunderapplicable Law.
(cb) In the event that Parent, the Surviving Corporation, any of the Company Subsidiaries 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 Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving CompanyCorporation, as applicablethe case may be, shall cause, or cause such Company Subsidiary to cause, proper provision to be made so that the successors and assigns of Parent or Parent, the Surviving CompanyCorporation or Company Subsidiary, as applicablethe case may be, assume the obligations covenants and agreements set forth in this Section 6.046.09.
(dc) Prior For a period of six (6) years from and after the Effective Time, the Surviving Corporation shall either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company or the Company Subsidiaries or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, in either case, of not less than the existing coverage and having other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (with insurance carriers having at least the same credit rating as the Company’s current carrier with respect to directors’ and officers’ liability insurance and fiduciary liability insurance), except that in no event shall the Surviving Corporation be required to pay with respect to such insurance policies in respect of any one (1) policy year more than 250% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”), and if the Surviving Corporation is unable to obtain the insurance required by this Section 6.09(c) it shall obtain as much comparable insurance as possible for the years within such six (6) year period for an annual premium equal to the Maximum Amount, in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below)may, or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time toat its option, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors directors, officers and officers employees who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time for a period of not less than six (the “Pre-Paid Tail”); 6) years; provided that in no event shall the cost of any such Pre-Paid Tail tail policy in respect of any one (1) policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company Corporation shall maintain such policies in full force and effect, and continue to honor the obligations thereunder, for such six-year period.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 6.09 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, legal representatives and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have under the OGCL, the articles of incorporation or code of regulations of the Surviving Corporation or any of the Company Subsidiaries, by contract or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Gas Natural Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates articles of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its the Company Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their termsterms (it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and Parent shall cause the Company and the Company Subsidiaries to perform its obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (ix) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) 10 Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL MBCA or the Surviving Company’s certificate articles of incorporation or by-lawslaws (or comparable organizational documents), to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (iiy) the Surviving Company shall cooperate in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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 surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving Company, as applicable, Company shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, Company assume the obligations set forth in this Section 6.046.05.
(dc) Prior For a period of six years from and after the Effective Time, the Surviving Company 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 or its Subsidiaries or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, in either case, of not less than the existing coverage and having other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (with insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance), except that in no event shall the Surviving Company be required to pay with respect to such insurance policies in respect of any one policy year more than 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”), and if the Surviving Company is unable to obtain the insurance required by this Section 6.05(c) it shall obtain as much comparable insurance as possible for the years within such six-year period for an annual premium equal to the Maximum Amount, in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date the Company shall may, at its option (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors directors, officers and officers employees who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”)Time; provided that in no event shall the cost of any such Pre-Paid Tail tail policy in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 6.05 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and the Company Subsidiaries under this Section 6.05.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates memorandum of incorporation association or bybye-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, Company Subsidiaries shall continue in full force and effect in accordance with their termsterms (it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and Parent shall cause the Company and the Company Subsidiaries to perform its obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who was prior to or is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its the Company Subsidiaries or who was prior to or is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgmentsJudgments, inquiries, fines, amounts paid in settlement fines and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (ix) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) 10 Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or Bermuda Companies Act, the Surviving Company’s certificate memorandum of incorporation association or bybye-lawslaws (or comparable organizational documents) or any applicable indemnification agreement, to repay such advances if it is ultimately determined by final non-appealable adjudication that such Person is not entitled to indemnification and (iiy) the Surviving Company shall cooperate in the defense of any such matter.
(b) For a period of six (6) years following from and after the Effective Time, the Surviving Company shall, and Parent shall either cause the Surviving Company to, maintain to be maintained in effect the provisions in its certificate current policies of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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, Parent or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.04.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy maintained by the Company or the Company Subsidiaries or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, in either case, of not less than the existing coverage and having other terms not less favorable to the insured Persons than the directors’, officers’ and employees’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (with insurance carriers having at least an “A” rating by
A. M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance), except that in no event shall the Surviving Company be required to pay with respect to such insurance policies in respect of any one policy year more than 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”), and if the Surviving Company is unable to obtain the insurance required by this Section 6.04(b) it shall obtain as much comparable insurance as possible for each year within such six-year period for an annual premium equal to the Maximum Amount. In lieu of such insurance, prior to the Closing Date the Company may, at its option, purchase “tail” directors’ and officers’ liability insurance and fiduciary liability insurance for a period of six years for the Company and its current and former directors, officers and employees who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail insurance to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons Persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”)Time; provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to tail insurance exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fc) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
(d) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and the Company Subsidiaries under this Section 6.04.
(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 corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, the Surviving Company shall cause proper provision to be made so that the successors and assigns of the Surviving Company assume the obligations set forth in this Section 6.04.
Appears in 1 contract
Samples: Merger Agreement (Marubeni Corp /Fi)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this AgreementAgreement and previously provided to Parent, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, (ix) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (iiy) the Surviving Company shall cooperate in the defense of any such matter.
(b) For a period of six (6) years following from and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, Party as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended during such time except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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 surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving Company, as applicable, Company shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, Company assume the obligations set forth in this Section 6.04.
(d) Prior to For a period of six years from and after the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below)Effective Time, or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as shall either cause to be maintained in effect the current policies of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy maintained by the Company or its Subsidiaries or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the CompanyCompany in either case, such tail to provide coverage in an amount of not less than the existing coverage and to have having other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the with insurance carriers having at least an “Pre-Paid Tail”A” rating by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance); provided , except that in no event shall the cost of any Surviving Company be required to pay with respect to such Pre-Paid Tail insurance policies in respect of any one policy year exceed 300more than 250% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that and if the total cost Surviving Company is unable to obtain the insurance required by this Section 6.04 it shall obtain as much comparable insurance as possible for maintaining the years within such Presix-Paid Tail exceeds year period for an annual premium equal to the Maximum Amount, then in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date the Company may, at its option (after prior following reasonable consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(f) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.purchase a
Appears in 1 contract
Samples: Merger Agreement (Health Management Associates, Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws bylaws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, Company Subsidiaries shall continue in full force and effect in accordance with their termsterms (it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and Parent shall cause the Company and the Company Subsidiaries to perform its obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who was prior to or is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its the Company Subsidiaries or who was prior to or is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (ix) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) 10 Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or DGCL, the Surviving Company’s certificate of incorporation or by-lawsbylaws (or comparable organizational documents) or any applicable indemnification agreement, to repay such advances if it is ultimately determined by final non-appealable adjudication that such Person person is not entitled to indemnification and (iiy) the Surviving Company and such Company Indemnified Party shall cooperate with each other in the defense of any such matter.
(b) For a period of six (6) years following from and after the Effective Time, the Surviving Company shall, and Parent shall either cause the Surviving Company to, maintain to be maintained in effect the provisions in its certificate current policies of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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, Parent or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.04.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy maintained by the Company or its Subsidiaries or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, in either case, of not less than the existing coverage and having other terms not less favorable, in the aggregate, to the insured persons than the directors’, officers’ and employees’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (with insurance carriers having at least an “A” rating with A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance), except that in no event shall the Surviving Company be required to pay with respect to such insurance policies in respect of any one policy year more than 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”), and if the Surviving Company is unable to obtain the insurance required by this Section 6.05(b) it shall obtain as much comparable insurance as possible for each year within such six-year period for an annual premium equal to the Maximum Amount. In lieu of such insurance, prior to the Closing Date the Company may, at its option (following reasonable consultation with Parent), purchase “tail” directors’ and officers’ liability insurance and fiduciary liability insurance for a period of six years for the Company and its current and former directors, officers and employees who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail insurance to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”)Time; provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to tail insurance exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fc) The provisions of this Section 6.04 6.05 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
(d) 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 corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, the Surviving Company shall cause proper provision to be made so that the successors and assigns of the Surviving Company assume the obligations set forth in this Section 6.05.
Appears in 1 contract
Samples: Merger Agreement (Intrawest Resorts Holdings, Inc.)
Indemnification, Exculpation and Insurance. (a) For a period of six (6) years from the Effective Time, Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (whether asserted or claimed prior to, at or after the Effective Time) now existing in favor of the current or former directors, directors or officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation governing or by-laws (or comparable organizational documents) documents and any indemnification or other similar agreements of the Company or any of its Subsidiariesthe Company Subsidiaries set forth on Section 6.04 of the Company 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. From , for a period of no less than six (6) years from and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements and Parent shall cause each of the DGCL adopted Company and the Company Subsidiaries to perform its obligations thereunder. Without limiting the foregoing, from and after the Effective Time and ending on the date that is the sixth anniversary of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) Closing Date, Parent shall cause the Surviving Company Corporation to, and the Surviving Corporation agrees that it will will, indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursementsdisbursements (“Losses”), incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (Time, including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director or officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under governing or organizational documents and any indemnification or other similar agreements of the Company or any of the Company Subsidiaries set forth on Section 6.04 of the Company Disclosure Letter. In the event of any such Actionclaim, action, suit or proceeding, (ix) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) Business Days Corporation in accordance with the organizational documents of receipt by the Surviving Company from Corporation as in effect on the Company Indemnified Party date of a request thereforthis Agreement; provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving CompanyCorporation’s certificate of incorporation or by-lawsbylaws (or comparable organizational documents), to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (iiy) the Surviving Company Corporation shall reasonably cooperate in the defense of any such matter.
(b) For a period of six (6) years following from and after the Effective Time, Parent and the Surviving Company shall, and Parent Corporation shall either cause the Surviving Company to, maintain to be maintained in effect the provisions in its certificate current policies of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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, Parent or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.04.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy maintained by the Company or the Company Subsidiaries or provide substitute policies for the Company and its the Company Subsidiaries and their current and former directors and officers who are currently covered by the directors’ and officers’ insurance coverage currently maintained by the Company or the Company Subsidiaries, in either case, of not less than the existing coverage and fiduciary having other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance coverage currently maintained by the CompanyCompany or the Company Subsidiaries with respect to claims arising from facts or events that occurred at or before the Effective Time (with insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance), except that in no event shall Parent or the Surviving Corporation be required to pay with respect to any annual policy period more than 350% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”), and if the Surviving Corporation is unable to obtain the insurance required by this Section 6.04(b) it shall obtain as much comparable insurance as possible within such six (6)-year period for a premium equal to the Maximum Amount. In lieu of such insurance, prior to the Closing Date the Company may, at its option, purchase a “tail” directors’ and officers’ liability insurance policy for the Company and the Company Subsidiaries and the insured persons who are currently covered by the directors’ and officers’ liability insurance coverage currently maintained by the Company or the Company Subsidiaries, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company or the Company Subsidiaries with respect to claims arising from facts or events that occurred on at or before the Effective Time (the “Pre-Paid Tail”)Time; provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one tail policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Parent and the Surviving Company Corporation shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(ec) From In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and after is not the Effective Timecontinuing 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, Parent then, and in each such case, the Surviving Corporation shall guarantee cause proper provision to be made so that the prompt payment of the obligations successors and assigns of the Surviving Company and its Subsidiaries under Corporation assume the obligations set forth in this Section 6.04.
(fd) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties)Party, his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification indemnification, advancement of expenses, exculpation or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Indemnification, Exculpation and Insurance.
(a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) Organization Documents and any indemnification or other similar agreements Contracts of the Company or any of its SubsidiariesCompany Subsidiary, in each case case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their termsterms (it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and Parent shall cause the Surviving Corporation and the Company Subsidiaries to perform their respective obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company Corporation agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its Subsidiaries Company Subsidiary or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened ActionClaim, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such ActionClaim covered under this Section 6.09, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action Claim from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request thereforParent; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL applicable Law or the Surviving CompanyCorporation’s certificate of incorporation or by-lawsOrganizational Documents, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (ii) the Surviving Company shall cooperate in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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, Parent or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.04.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(f) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.and
Appears in 1 contract
Samples: Merger Agreement
Indemnification, Exculpation and Insurance. (a) Parent agrees that all All rights to indemnification, indemnification and advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to through the Effective Time now existing Closing in favor of the current or former directors, managers, partners and officers or employees of the Company and its Subsidiaries (each, an “Indemnitee”) as provided in their respective certificates (i) the Company’s certificate of incorporation or and by-laws and the organizational documents of such Subsidiaries as currently in effect and (or comparable organizational documentsii) and any the indemnification or other similar agreements listed on Schedule 5.7, shall survive the consummation of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall Transactions and continue in full force and effect in accordance with their terms. From respective terms and after shall not be amended, repealed or otherwise modified in a manner that would adversely affect the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements rights thereunder of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification and (ii) the Surviving Company shall cooperate in the defense of any such matterIndemnitees.
(b) For a period of six (6) years following after the Effective TimeClosing, Buyer shall cause to be maintained by the Surviving Company shall, Corporation a “run-off” or “tail” directors’ and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws officers’ liability insurance policy to the extent they provide current policy for indemnificationthe Company and its Subsidiaries (the “D&O Tail”), advancement underwritten by one or more insurers with an A.M. Best rating no less than the A.M. Best rating of the current insurer for the Company and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicableits Subsidiaries, with respect to facts or circumstances matters occurring at or prior to or at the Effective Time, on Closing and having coverage limits in the same basis aggregate amount as set forth in currently provided for a six (6)-year period following the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope Merger Closing Date. The costs of the Company Indemnified Parties’ indemnification rights thereunderD&O Tail shall be borne by the Surviving Corporation. In no event will Buyer or the Surviving Corporation be required to expend for each covered year an amount in excess of 300% of the current annual premium for such insurance.
(c) In the event that Parent, If Buyer or the Surviving Company Corporation or any of its their successors or assigns (i) consolidates with or merges into any other Person and is shall not be the continuing or Surviving Company or surviving entity of such consolidation or merger merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or to the Surviving Companyextent necessary, as applicable, shall cause proper provision to shall be made so that the successors and assigns of Parent Buyer or the Surviving CompanyCorporation, as applicablethe case may be, assume the obligations set forth in this Section 6.045.7.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(f) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers officers, agents or employees of the Company and its the Company Subsidiaries as provided in their respective certificates articles of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its the Company Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their respective terms, and Parent shall cause the Company and the Company Subsidiaries to perform their respective obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements each of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers Parent and directors) the Surviving Company agrees that it will will, to the maximum extent set forth in the Company Charter and Company By-laws and under applicable Law, indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its the Company Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director director, officer or officer employee of another Person (collectively, the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory arising out of or investigative pertaining to (including with respect to i) matters existing or occurring or alleged to occur at or prior to the Effective Time (including the decision of the Company Board to enter into this Agreement, the terms of this Agreement and the pendency and consummation of the transactions and actions contemplated hereby)), arising out of ) or pertaining to (ii) the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, (iA) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit, proceeding or investigation from the Surviving Company Corporation within ten (10) Business Days of receipt by the Surviving Company Corporation from the Company Indemnified Party of a request therefor; provided provided, however, that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL FBCA or the Surviving Company’s certificate of incorporation Company Charter or byCompany By-lawslaws (in each case as in effect immediately prior to the Effective Time), to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification be indemnified by the Surviving Corporation as authorized by the FBCA, (B) without limiting the foregoing, each Company Indemnified Party may retain the Company’s regularly engaged independent legal counsel (provided that such engagement would not create a conflict of interest under applicable rules of ethics) or other counsel satisfactory to them, and Parent and the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Company Indemnified Party as promptly as statements therefor are received, (iiC) the Surviving Corporation shall not settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Company Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Company Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Company Indemnified Party otherwise consents, and (D) Parent and the Surviving Corporation shall cooperate use their reasonable best efforts to assist in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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 surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving Company, as applicable, Company shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, Company assume the obligations set forth in this Section 6.04.
(dc) Prior For a period of six years from and after the Effective Time, the Surviving Company 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 provide substitute policies for the Company and its Subsidiaries and its and their respective current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, in either case, of not less than the existing coverage and having other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (with insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance), except that in no event shall the Surviving Company be required to pay with respect to such insurance policies in respect of any one policy year more than 350% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”), and if the Surviving Company is unable to obtain the insurance required by this Section 6.04(c) for the Maximum Amount, then it shall obtain as much comparable insurance as possible for the years within such six-year period for an annual premium equal to the Maximum Amount, in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date the Company shall may, at its option (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors directors, officers and officers employees who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”)Time; provided that in no event shall the cost of any such Pre-Paid Tail tail policy in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(ed) From and For a period of six (6) years after the Effective Time, Parent shall guarantee the prompt payment respective articles of the obligations incorporation and bylaws or similar organizational or governing documents of the Surviving Corporation and the Company Subsidiaries shall contain provisions no less favorable with respect to indemnification, advancement of expenses and its Subsidiaries under this Section 6.04exculpation of Company Indemnified Parties for periods prior to and including the Effective Time than are currently set forth in the Company Charter and Company By-laws and the articles of incorporation, bylaws, or similar organizational and governing documents of the Company Subsidiaries.
(fe) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
(f) From and after the Effective Time, Parent (i) shall cause the Surviving Corporation and the Company Subsidiaries to honor, in accordance with their respective terms, the covenants contained in this Section 6.04 and (ii) shall guarantee the prompt payment of the obligations of the Surviving Company and the Company Subsidiaries under this Section 6.04.
Appears in 1 contract
Samples: Merger Agreement (Exactech Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers Law, Parent will, and directors) will cause the Surviving Company agrees that it will indemnify Corporation to, indemnify, defend and hold harmless each individual who is as the current or former directors, officers, employees or agents of the date Company and the subsidiaries of this Agreementthe Company (the “Covered Persons”) against all losses, claims, damages, liabilities, fees and expenses (including attorneys’ fees and disbursements), Judgments, fines and amounts paid in settlement (in the case of settlements, with the approval of the indemnifying party (which approval will not be unreasonably withheld)) (collectively, “Losses”), as incurred (payable monthly upon written request which request will include reasonable evidence of the Losses set forth therein) to the extent arising from, relating to, or who becomes otherwise in respect of, any actual or threatened action, suit, proceeding or investigation, in respect of actions or omissions occurring at or prior to the Effective Time, a Time in connection with such indemnified party’s duties as an officer or director or officer of the Company or any of its Subsidiaries or who is subsidiaries, as a member of the date of this Agreementany committee thereof, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director director, officer, fiduciary, employee or officer agent of an employee benefit plan or another Person (the “Company Indemnified Parties”)corporation, against all claimspartnership, lossesjoint venture, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expensestrust or other enterprise, including attorneys’ fees in respect of this Agreement, the Merger and disbursementsthe other Transactions.
(b) Parent will, incurred in connection with any actual to the fullest extent permitted by Law, cause the Surviving Corporation to honor all the Company’s obligations to indemnify the Covered Persons for acts or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or omissions by such Covered Persons occurring or alleged to occur at or prior to the Effective Time (including this Agreement the advancement of funds and expenses to the transactions and actions contemplated hereby)extent provided under the Company Charter, the Company Bylaws or individual indemnity or other agreements to which such Covered Persons are a party as in effect on the date hereof subject to the reimbursement provisions thereof), and such obligations will survive the Merger and will continue in full force and effect in accordance with the terms of the Company Charter, the Company Bylaws and such individual indemnity agreements from the Effective Time until the expiration of the applicable statute of limitations with respect to any claims against such Covered Persons arising out of such acts or pertaining omissions. Parent will, to the fact that fullest extent permitted by Law, cause the Surviving Corporation to advance funds for expenses incurred by Covered Persons so indemnified in defending a civil or criminal action, suit or proceeding relating to the indemnification obligations referenced in the immediately preceding sentence in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking made in accordance with the Company Indemnified Party is or was an officer or director of Charter, the Company Bylaws and individual indemnity agreements (unless otherwise prohibited by Law) by or any on behalf of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Covered Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances amount if it is will be ultimately determined by final adjudication that such Person he or she is not entitled to the indemnification and (ii) the Surviving Company shall cooperate referenced in the defense of any such matterimmediately preceding sentence.
(bc) For a period of six (6) years following after the Effective Time, the Surviving Company shall, and Parent shall will cause the Surviving Company to, maintain to be maintained in effect the provisions in its certificate current policies of incorporation directors’ and by-laws officers’ liability insurance maintained by the Company (provided that Parent may substitute therefor policies with reputable and financially sound carriers of at least the same coverage and amounts containing terms and conditions which are no less advantageous) with respect to claims arising from or related to facts or events which occurred at or before the Effective Time; provided, however, that Parent will not be obligated to make annual premium payments for such insurance to the extent they provide such premiums exceed 300% of the annual premiums paid as of the date hereof by the Company for indemnificationsuch insurance (such 300% amount, advancement the “Maximum Premium”). If such insurance coverage cannot be obtained at all, or can only be obtained at an annual premium in excess of the Maximum Premium, Parent will maintain the most advantageous policies of directors’ and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior officers’ insurance obtainable for an annual premium equal to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunderMaximum Premium.
(cd) In the event that Parent, the Surviving Company 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 Company 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, then and in each such case, Parent or the Surviving Company, as applicable, shall cause proper provision to will be made so that the successors and assigns such continuing or surviving corporation or entity or transferee of Parent or the Surviving Companysuch assets, as applicablethe case may be, will assume all of the applicable obligations set forth in Section 6.04 and this Section 6.046.05.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(f) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) From and after the Effective Time, Parent agrees and Merger Sub agree that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or each former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a present director or officer of the Company or any Company Subsidiary and each person who served as a director, officer, member, trustee or fiduciary of its Subsidiaries another corporation, partnership, joint venture, trust, pension or who is as of the date of this Agreement, other employee benefit plan or who thereafter commences prior to the Effective Time, serving enterprise if such service was at the request or for the benefit of the Company or any of its Subsidiaries as Company Subsidiary (each, together with such person’s heirs, executors or administrators, a director or officer of another Person (the “Company Indemnified PartiesParty”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including each, an “Action”), with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred Time as provided in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate their respective certificates of incorporation or by-lawsbylaws (or comparable organizational documents) as in effect on the date of this Agreement or in any agreement, a true and complete copy of which agreement has been provided by the Company to Parent prior to the date hereof, to repay such advances if it which the Company or any of its Subsidiaries is ultimately determined by final adjudication that such Person is not entitled to indemnification a party, shall survive the Merger and (ii) the Surviving Company shall cooperate continue in the defense of any such matter.
(b) full force and effect in accordance with their terms. For a period of six (6) years following from the Effective Time, the Surviving Company Parent shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, (to the fullest extent permitted from time to time under Applicable applicable Law) the exculpation, which indemnification and advancement of expenses provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company’s and any Company Indemnified Parties’ indemnification rights thereunder.
(c) In Subsidiary’s articles of incorporation and bylaws or other organization documents in effect immediately prior to the event that ParentEffective Time or in any agreement, a true and complete copy of which agreement has been provided by the Surviving Company to Parent prior to the date hereof, to which the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and Subsidiaries 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 Persona party, then, and in each case in effect immediately prior to the Effective Time and shall not amend, repeal or otherwise modify any such caseprovisions or the exculpation, Parent indemnification or advancement of expenses provisions of the Surviving Company, as applicable, shall cause proper provision to be made so that the successors ’s certificate of incorporation and assigns of Parent or the Surviving Company, as applicable, assume the obligations bylaws set forth in this Section 6.04.
(d) Prior to Exhibit A and Exhibit B in any manner that would adversely affect the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as rights thereunder of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers any individual who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or immediately before the Effective Time (the “Pre-Paid Tail”)was a Company Indemnified Party; provided provided, however, that in no event shall the cost of any such Pre-Paid Tail all rights to indemnification in respect of any one policy year exceed 300% Action pending or asserted or any claim made within such period shall continue until the disposition of the aggregate annual premium most recently paid by the Company prior to the date such Action or resolution of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunderclaim.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(f) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Solarcity Corp)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Closing Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will HoldCo shall indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Closing Effective Time, a director or officer of Copper or the Company Copper General Partner or Steel or any of its their Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Closing Effective Time, serving at the request of the Company Copper or Steel, as applicable, or any of its their respective Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, Action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Closing Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of Copper or the Company Copper General Partner or Steel, as applicable, or any of its their respective Subsidiaries or is or was serving at the request of the Company Copper or Steel, as applicable, or any of its their respective Subsidiaries as a director director, officer or officer employee of another PersonPerson or in respect of any acts or omissions in their capacities as such directors, officers or employees occurring prior to the Closing Effective Time, whether asserted or claimed prior to, at or after the Closing Effective Time, to the same extent as such Indemnified Parties are indemnified as of the date of this Agreement by Copper pursuant to the Copper Partnership Agreement or the governing or organizational documents of any Subsidiary of Copper or the Copper General Partner, or by Steel pursuant to the Steel Certificate of Incorporation, the By-laws of Steel or the governing organizational documents of any Subsidiary of Steel, as applicable, or any indemnification agreements in existence as of the date of this Agreement. In the event of any such claim, Action, suit or proceeding, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, Action, suit or proceeding from HoldCo to the Surviving Company within ten (10) Business Days same extent as such Indemnified Parties are entitled to advance of receipt expenses as of the date of this Agreement by Copper pursuant to the Surviving Company from Copper Partnership Agreement or the Company Indemnified Party governing or organizational documents of a request thereforany Subsidiary of Copper or the Copper General Partner, or by Steel pursuant to the Steel Certificate of Incorporation, the By-laws of Steel or the governing or organizational documents of any Subsidiary of Steel, as applicable, and any indemnification agreements in existence as of the date of this Agreement; provided provided, that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL DGCL, the Copper Partnership Agreement or the Surviving Company’s certificate Certificate of incorporation Incorporation or byBy-lawslaws of the Copper General Partner, or the Steel Certificate of Incorporation or the By-laws of Steel, as applicable, and any indemnification agreements in existence as of the date of this Agreement, to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification and (ii) the Surviving Company HoldCo shall, and shall cause its Subsidiaries to, cooperate in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) . In the event that Parent, the HoldCo or Copper Surviving Company Entity 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 Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent HoldCo or the Copper Surviving CompanyEntity, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent HoldCo or the Copper Surviving CompanyEntity, as applicable, assume the obligations set forth in this Section 6.048.4.
(db) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as For a period of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ years from and officers’ liability insurance policy and fiduciary liability insurance policy for after the Company and its Closing Effective Time, HoldCo shall either cause to be maintained in effect the current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the policies of directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by Copper or Steel or any of their Subsidiaries or provide substitute polices for not less than the Company existing coverage and have other terms not less favorable to the insured persons with respect to claims arising from facts or events that occurred on or before the Closing Effective Time (the “Pre-Paid Tail”); provided Time, except that in no event shall the cost HoldCo be required to pay with respect to such insurance policies (or substitute insurance policies) (i) of any such Pre-Paid Tail Copper in respect of any one policy year exceed more than 300% of the aggregate annual premium most recently paid payable by Copper for such insurance for the Company prior to the date of this Agreement twelve (12) months (the “Copper Maximum Amount”), and if HoldCo is unable to obtain the insurance required by this Section 8.4 it shall obtain as much comparable insurance as possible for the years within such six-year period for an annual premium equal to the Copper Maximum Amount, in respect of each policy year within such period; provided, further that in lieu of the foregoing, Copper may obtain at or prior to the Closing Effective Time a six-year “tail” policy under Copper’s existing directors and officers insurance policy providing equivalent coverage to that described in the preceding sentence if and to the total cost extent that the same may be obtained for maintaining such Pre-Paid Tail exceeds an aggregate amount that does not exceed the Copper Maximum Amount, then or (ii) of Steel in respect of any one policy year more than 300% of the Company annual premium payable by Steel for such insurance for the prior twelve (after prior consultation with Parent12) may obtainmonths (the “Steel Maximum Amount”), or following Closing, Parent and if HoldCo is unable to obtain the insurance required by this Section 8.4 it shall obtain as much comparable insurance as possible for the years within such six-year period for an annual premium equal to the Steel Maximum Amount, in respect of each policy year within such period; provided, that in lieu of the foregoing, Steel may obtain at or prior to the Closing Effective Time a Presix-Paid Tail with year “tail” policy under Steel’s existing directors and officers insurance policy providing equivalent coverage to that described in the maximum coverage available preceding sentence if and to the extent that the same may be obtained for a total cost an aggregate amount that does not to exceed the Steel Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fc) The provisions of this Section 6.04 8.4 (i) shall survive consummation of the MergerMergers, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Cedar Fair L P)
Indemnification, Exculpation and Insurance. (a) Parent Holdco agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of Westar, the Company Westar Subsidiaries, GPE and its the GPE Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) Organization Documents and any indemnification or other similar agreements Contracts of the Company Westar, any Westar Subsidiary, GPE or any of its SubsidiariesGPE Subsidiary, in each case case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their termsterms (it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and Holdco shall cause the Westar Surviving Corporation and the Westar Subsidiaries to perform their respective obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company Holdco agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company Westar, any Westar Subsidiary, GPE or any of its Subsidiaries GPE Subsidiary or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company Westar, any Westar Subsidiary, GPE or any of its Subsidiaries GPE Subsidiary as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened ActionClaim, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or Westar, any of its Subsidiaries Westar Subsidiary, GPE, any GPE Subsidiary or is or was serving at the request of the Company Westar, any Westar Subsidiary, GPE or any of its Subsidiaries GPE Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such ActionClaim covered under this Section 6.09, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action Claim from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request thereforHoldco; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL applicable Law or the Surviving CompanyHoldco’s certificate of incorporation or by-lawsOrganizational Documents, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (ii) the Surviving Company Holdco shall cooperate in good faith in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, the Surviving Company Holdco or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or Surviving Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving Company, as applicable, Holdco shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, Holdco assume the obligations covenants and agreements set forth in this Section 6.046.09.
(dc) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as For a period of or after the Effective Time to, purchase a six (6) -year prepaid “tail” years from and after the Effective Time, Holdco shall either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance policy and fiduciary liability insurance policy maintained by Westar, the Westar Subsidiaries, GPE or the GPE Subsidiaries or provide substitute policies for the Company Westar, GPE and its their respective current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the CompanyWestar and GPE, such tail to provide coverage in an amount either case, of not less than the existing coverage and to have having other terms not materially less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company Westar and GPE with respect to claims arising from facts or events that occurred on or before the Effective Time (the with insurance carriers having at least an “Pre-Paid Tail”A” rating by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance); provided , except that in no event shall the cost of any Holdco be required to pay with respect to such Pre-Paid Tail insurance policies in respect of any one policy year exceed more than 300% of the aggregate annual premium most recently paid by the Company Westar or GPE prior to the date of this Agreement (the “Maximum Amount”); provided, further that and if Holdco is unable to obtain the total cost insurance required by this Section 6.09(c) it shall obtain as much comparable insurance as possible for maintaining the years within such Pre-Paid Tail exceeds six (6) year period for an annual premium equal to the Maximum Amount, then in respect of each policy year within such period. In lieu of such insurance, prior to the Company (after prior consultation Closing Date Westar may, at its option, purchase a “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for Westar, GPE and their respective current and former directors, officers and employees who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by Westar and GPE, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not materially less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by Westar and GPE with Parent) may obtain, respect to claims arising from facts or following Closing, Parent shall obtain a Pre-Paid Tail with events that occurred on or before the maximum coverage available Effective Time for a total period of not less than six (6) years; provided that in no event shall the cost not to of any such tail policy in respect of any one policy year exceed the Maximum Amount. The Surviving Company Holdco shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 6.09 (i) shall survive consummation of the MergerMergers, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, representatives and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Great Plains Energy Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all All rights to indemnification, advancement of expenses indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, directors or officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any existing indemnification agreements or other similar agreements arrangements of the Company or any of and its Subsidiaries, in each case as in effect on Subsidiaries shall survive the date of this Agreement, Merger and shall continue in full force and effect in accordance with their terms. From , and shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time, Time in any manner that would adversely affect the rights thereunder of such individuals for acts or omissions occurring at or prior to the fullest extent permitted by Applicable Law Effective Time.
(b) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including to the fullest extent authorized any such claim, action suit, proceeding or permitted by investigation in which any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who is as of (the date of this Agreement"INDEMNIFIED PARTIES"), is, or who thereafter commences prior is threatened to the Effective Timebe, serving at the request of the Company made a party based in whole or any of its Subsidiaries as a director in part on, or officer of another Person (the “Company Indemnified Parties”)arising in whole or in part out of, against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to (i) the fact that the Company Indemnified Party he is or was an a director, officer or director employee of the Company or any of its Subsidiaries or is their respective predecessors or was serving at the request of the Company (ii) this Agreement or any of its Subsidiaries as a director or officer of another Personthe transactions contemplated hereby, whether in any case asserted or claimed prior to, at arising before or after the Effective Time. In , the event of any such Action, (i) each Company Indemnified Party will be entitled parties hereto agree to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person cooperate and use their best efforts to whom expenses are advanced provides an undertaking, if defend against and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification and (ii) the Surviving Company shall cooperate in the defense of any such matterrespond thereto.
(bc) For a period of six (6) years following after the Effective Time, the Surviving Company shall, and Parent Corporation shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation Company's current directors' and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts officers' liability insurance covering acts or circumstances omissions occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, Time with respect to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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, Parent or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.04.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers those Persons who are currently covered by the Company's directors’ ' and officers’ and fiduciary ' liability insurance coverage currently maintained by the Company, policy on terms with respect to such tail to provide coverage in an amount not less than the existing coverage and to have other terms not amount no less favorable to the insured persons Company's directors and officers currently covered by such insurance than those of such policy in effect on the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by date hereof; provided, that the Company Surviving Corporation may substitute therefor policies of Parent or its Subsidiaries (including self insurance) containing terms with respect to claims arising from facts coverage and amount no less favorable to such directors or events that occurred on or before the Effective Time (the “Pre-Paid Tail”)officers; provided provided, further, that in no event shall the cost Surviving Corporation be required to pay aggregate premiums for insurance under this Section 5.5(c) in excess of any such Pre-Paid Tail in respect of any one policy year exceed 300200% of the aggregate annual premium most recently premiums paid by the Company prior to the date of this Agreement (the “Maximum Amount”); providedin 2003 on an annualized basis for such purpose and, further that if the total cost for maintaining annual premiums of such Pre-Paid Tail exceeds insurance coverage exceed such amount, the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent Surviving Corporation shall be obligated to use its reasonable best efforts obtain a Pre-Paid Tail policy with the maximum greatest coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain exceeding such policies in full force and effect, and continue to honor the obligations thereunderamount.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 (i) 5.5 shall survive consummation of the Merger, (ii) Effective Time and are intended to be for the benefit of, and will shall be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), Party and other Person named herein and his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this AgreementAgreement and previously provided to Parent, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, (ix) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (iiy) the Surviving Company shall cooperate in the defense of any such matter.
(b) For a period of six (6) years following from and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, Party as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended during such time except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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 surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving Company, as applicable, Company shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, Company assume the obligations set forth in this Section 6.04.
(d) Prior For a period of six years from and after the Effective Time, the Surviving Company 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 or its Subsidiaries or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company in either case, of not less than the existing coverage and having other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (with insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance), except that in no event shall the Surviving Company be required to pay with respect to such insurance policies in respect of any one policy year more than 250% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”), and if the Surviving Company is unable to obtain the insurance required by this Section 6.04 it shall obtain as much comparable insurance as possible for the years within such six-year period for an annual premium equal to the Maximum Amount, in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date the Company shall may, at its option (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”)Time; provided that in no event shall the cost of any such Pre-Paid Tail tail policy in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then . In the event the Company (after prior consultation with Parent) may obtainpurchases such tail coverage, or following Closing, Parent the Surviving Company shall obtain a Pre-Paid Tail with cease to have any obligations under the maximum coverage available for a total cost not to exceed the Maximum Amountfirst sentence of this Section 6.05(d). The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(f) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including of the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates memorandum of incorporation association or bybye-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, Company Subsidiaries shall continue in full force and effect in accordance with their termsterms (it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and Parent shall cause the Company and the Company Subsidiaries to perform its obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who was prior to or is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its the Company Subsidiaries or who was prior to or is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgmentsJudgments, inquiries, fines, amounts paid in settlement fines and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (ix) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) 10 Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or Bermuda Companies Act, the Surviving Company’s certificate memorandum of incorporation association or bybye-lawslaws (or comparable organizational documents) or any applicable indemnification agreement, to repay such advances if it is ultimately determined by final non-appealable adjudication that such Person is not entitled to indemnification and (iiy) the Surviving Company shall cooperate in the defense of any such matter.
(b) For a period of six (6) years following from and after the Effective Time, the Surviving Company shall, and Parent shall either cause the Surviving Company to, maintain to be maintained in effect the provisions in its certificate current policies of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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, Parent or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.04.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy maintained by the Company or the Company Subsidiaries or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, in either case, of not less than the existing coverage and having other terms not less favorable to the insured Persons than the directors’, officers’ and employees’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (with insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance), except that in no event shall the Surviving Company be required to pay with respect to such insurance policies in respect of any one policy year more than 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”), and if the Surviving Company is unable to obtain the insurance required by this Section 6.04(b) it shall obtain as much comparable insurance as possible for each year within such six-year period for an annual premium equal to the Maximum Amount. In lieu of such insurance, prior to the Closing Date the Company may, at its option, purchase “tail” directors’ and officers’ liability insurance and fiduciary liability insurance for a period of six years for the Company and its current and former directors, officers and employees who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail insurance to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons Persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”)Time; provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to tail insurance exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fc) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
(d) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and the Company Subsidiaries under this Section 6.04.
(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 corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, the Surviving Company shall cause proper provision to be made so that the successors and assigns of the Surviving Company assume the obligations set forth in this Section 6.04.
Appears in 1 contract
Samples: Merger Agreement (Aircastle LTD)
Indemnification, Exculpation and Insurance. (a) Parent From and after the East/Toucan Effective Time, Holdco agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or each former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a present director or officer of the Company or any Company Subsidiary and each person who served as a director, officer, member, trustee or fiduciary of its Subsidiaries another corporation, partnership, joint venture, trust, pension or who is as of the date of this Agreement, other employee benefit plan or who thereafter commences prior to the Effective Time, serving enterprise if such service was at the request or for the benefit of the Company or any of its Subsidiaries as Company Subsidiary (each, together with such person’s heirs, executors or administrators, a director or officer of another Person (the “Company Indemnified PartiesParty”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrativeadministrative or investigative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the East/Toucan Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request or for the benefit of the Company or any of its Subsidiaries Company Subsidiary as a director or officer of another Person, pension or other employee benefit plan or enterprise, whether asserted or claimed prior to, at or after the East/Toucan Effective Time. In the event of any such Action, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred Time as provided in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate their respective certificates of incorporation or by-lawslaws (or comparable organizational documents) as in effect on the date of this Agreement or in any agreement, a true and complete copy of which agreement has been provided by the Company to Parent prior to the date hereof, to repay which the Company or any of its Subsidiaries is a party, shall survive the East/Toucan Merger and continue in full force and effect in accordance with their terms. For a period of six years from the East/Toucan Effective Time, Holdco shall, and shall cause Toucan Surviving LLC to, maintain in effect the exculpation, indemnification and advancement of expenses provisions of the Company’s and any Company Subsidiary’s articles of incorporation and by-laws or other organization documents in effect immediately prior to the East/Toucan Effective Time or in any agreement, a true and complete copy of which agreement has been provided by the Company to Parent prior to the date hereof, to which the Company or any of its Subsidiaries is a party, in each case in effect immediately prior to the East/Toucan Effective Time and shall not amend, repeal or otherwise modify any such advances if it is ultimately determined by final adjudication provisions or the exculpation, indemnification or advancement of expenses provisions of the Toucan Surviving LLC’s certificate of formation or limited liability company agreement in any manner that such Person is not would adversely affect the rights thereunder of any individual who immediately before the East/Toucan Effective Time was entitled to exculpation, indemnification and (ii) the Surviving Company shall cooperate or advancement of expenses thereunder; provided, however, that all rights to indemnification in the defense respect of any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (each, an “Action”) pending or asserted or any claim made within such matterperiod shall continue until the disposition of such Action or resolution of such claim.
(b) For a period of six (6) years following from the East/Toucan Effective Time, Holdco shall cause to be maintained in effect the Surviving coverage provided by the policies of directors’ and officers’ liability insurance and fiduciary liability insurance in effect as of the East/Toucan Effective Time by the Company shalland its Subsidiaries from a carrier with the same or better credit ratings to the Company’s existing directors’ and officers’ insurance and fiduciary liability insurance policy carrier and on terms and conditions not less favorable to the insured Persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts, events, acts or omissions that occurred on or before the East/Toucan Effective Time, except that in no event shall Holdco be required to pay an annual premium for such insurance in excess of 250% of the aggregate annual premium payable by the Company for such insurance policy for the year ended December 31, 2013 (the “Maximum Amount”); provided, however, that if such insurance can only be obtained at an annual premium in excess of the Maximum Amount, Holdco shall obtain the most advantageous policy of directors’ and officers’ insurance obtainable for an annual premium equal to the Maximum Amount. In lieu of the foregoing, the Company may in its discretion purchase, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Partyor Holdco, as applicable, may in its discretion purchase (or cause to be purchased) if the Company declines to do so, a “tail” directors’ and officers’ liability insurance and fiduciary liability insurance policy covering the six-year period from and after the East/Toucan Effective Time from a carrier with the same or better credit ratings to the Company’s existing directors’ and officers’ insurance and fiduciary liability insurance policy carrier and on terms and conditions not less favorable to the insured Persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to facts claims arising from facts, events, acts or circumstances occurring at omissions that occurred on or prior to before the East/Toucan Effective Time, on provided that without the same basis Parent’s or Holdco’s consent, as set forth in applicable, the Company Charter and Company By-laws in effect on the date cost of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions such “tail” policy shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge exceed the scope of the Company Indemnified Parties’ indemnification rights thereunderMaximum Amount.
(c) In the event that ParentHoldco, the Toucan Surviving Company LLC 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 Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent Holdco or the Toucan Surviving Company, as applicable, LLC shall cause proper provision to be made so that the successors and assigns of Parent Holdco or the Toucan Surviving Company, as applicablethe case may be, assume the obligations set forth in this Section 6.046.05.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(f) The provisions of this Section 6.04 6.05 shall (i) shall survive consummation of the MergerMergers, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, representatives and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Engility Holdings, Inc.)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws bylaws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, Company Subsidiaries shall continue in full force and effect in accordance with their termsterms (it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and Parent shall cause the Company and the Company Subsidiaries to perform its obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who was prior to or is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its the Company Subsidiaries or who was prior to or is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any actual claim, action, suit or threatened Actionproceeding, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Actionclaim, action, suit or proceeding, (ix) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action claim, action, suit or proceeding from the Surviving Company within ten (10) 10 Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or CBCA, the Surviving Company’s certificate of incorporation or by-lawsbylaws (or comparable organizational documents) or any applicable indemnification agreement, to repay such advances if it is ultimately determined by final non-appealable adjudication that such Person person is not entitled to indemnification and (iiy) the Surviving Company shall cooperate in the defense of any such matter.
(b) For a period of six (6) years following from and after the Effective Time, the Surviving Company shall, and Parent shall either cause the Surviving Company to, maintain to be maintained in effect the provisions in its certificate current policies of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, 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, Parent or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.04.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy maintained by the Company or the Company Subsidiaries or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, in either case, of not less than the existing coverage and having other terms not less favorable to the insured persons than the directors’, officers’ and employees’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (with insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance), except that in no event shall the Surviving Company be required to pay with respect to such insurance policies in respect of any one policy year more than 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”), and if the Surviving Company is unable to obtain the insurance required by this Section 6.04(b) it shall obtain as much comparable insurance as possible for the each year within such six-year period for an annual premium equal to the Maximum Amount. In lieu of such insurance, prior to the Closing Date the Company may, at its option (following reasonable consultation with Parent), or Parent may, at its option, cause the Surviving Company to, purchase a “tail” directors’ and officers’ liability insurance and fiduciary liability insurance for the Company and its current and former directors, officers and employees who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail insurance to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”)Time; provided that in no event shall the cost of any such Pre-Paid Tail tail insurance in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fc) The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
(d) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and the Company Subsidiaries under this Section 6.04.
(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 corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, the Surviving Company shall cause proper provision to be made so that the successors and assigns of the Surviving Company assume the obligations set forth in this Section 6.04.
Appears in 1 contract
Samples: Merger Agreement (KAMAN Corp)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) Organization Documents and any indemnification or other similar agreements Contracts of the Company or any of its SubsidiariesCompany Subsidiary, in each case case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their termsterms (it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and Parent shall cause the Surviving Corporation and the Company Subsidiaries to perform their respective obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company Corporation agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its Subsidiaries Company Subsidiary or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened ActionClaim, whether civil, criminal, administrative, regulatory administrative or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such ActionClaim, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action Claim from the Surviving Company Parent within ten (10) Business Days of after receipt by the Surviving Company Parent from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL applicable Law or the Surviving CompanyCorporation’s certificate of incorporation or by-lawsOrganizational Documents, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (ii) the Surviving Company Corporation shall cooperate in good faith in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, Parent or the Surviving Company Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or Surviving Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving CompanyCorporation, as applicablethe case may be, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving CompanyCorporation, as applicablethe case may be, assume the obligations covenants and agreements set forth in this Section 6.046.09.
(dc) Prior For a period of six (6) years from and after the Effective Time, the Surviving Corporation shall either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company or its Subsidiaries or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, in either case, of not less than the existing coverage and having other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (with insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance), except that in no event shall the Surviving Corporation be required to pay with respect to such insurance policies in respect of any one policy year more than 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”), and if the Surviving Corporation is unable to obtain the insurance required by this Section 6.09(c) it shall obtain as much comparable insurance as possible for the years within such six (6) year period for an annual premium equal to the Maximum Amount, in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below)may, or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time toat its option, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors directors, officers and officers employees who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time for a period of not less than six (the “Pre-Paid Tail”)6) years; provided that in no event shall the cost of any such Pre-Paid Tail tail policy in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company Corporation shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 6.09 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, representatives and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Corporation and the Company Subsidiaries under this Section 6.09.
Appears in 1 contract
Samples: Merger Agreement (Teco Energy Inc)
Indemnification, Exculpation and Insurance. (a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) its Organizational Documents and any indemnification or other similar agreements Contracts of the Company or any of its SubsidiariesCompany, in each case case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms. From and terms (it being agreed that after the Effective TimeClosing such rights shall be mandatory rather than permissive, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers if applicable), and directors) Parent shall cause the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this AgreementCorporation to perform their respective obligations thereunder. WITHOUT LIMITING THE FOREGOING, or who becomes prior to the Effective TimeFROM AND AFTER THE EFFECTIVE TIME, a director or officer of the Company or any of its Subsidiaries or who is as of the date of this AgreementTHE SURVIVING CORPORATION AGREES THAT IT WILL INDEMNIFY AND HOLD HARMLESS EACH INDIVIDUAL WHO IS AS OF THE DATE OF THIS AGREEMENT, or who thereafter commences prior to the Effective TimeOR WHO BECOMES PRIOR TO THE EFFECTIVE TIME, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person A DIRECTOR, OFFICER OR EMPLOYEE OF THE COMPANY OR WHO IS AS OF THE DATE OF THIS AGREEMENT, OR WHO THEREAFTER COMMENCES PRIOR TO THE EFFECTIVE TIME, SERVING AT THE REQUEST OF THE COMPANY AS A DIRECTOR, OFFICER OR EMPLOYEE OF ANOTHER PERSON (the THE “Company Indemnified PartiesCOMPANY INDEMNIFIED PARTIES”), against all claimsAGAINST ALL CLAIMS, lossesLOSSES, liabilitiesLIABILITIES, damagesDAMAGES, judgmentsJUDGMENTS, inquiriesINQUIRIES, finesFINES AND REASONABLE FEES, amounts paid in settlement and feesCOSTS AND EXPENSES, costs and expensesINCLUDING ATTORNEYS’ FEES AND DISBURSEMENTS, including attorneys’ fees and disbursementsINCURRED IN CONNECTION WITH ANY CLAIM, incurred in connection with any actual or threatened ActionWHETHER CIVIL, whether civilCRIMINAL, criminal, administrative, regulatory or investigative ADMINISTRATIVE OR INVESTIGATIVE (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time INCLUDING WITH RESPECT TO MATTERS EXISTING OR OCCURRING AT OR PRIOR TO THE EFFECTIVE TIME (including this Agreement and the transactions and actions contemplated herebyINCLUDING THIS AGREEMENT AND THE TRANSACTIONS AND ACTIONS CONTEMPLATED HEREBY)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another PersonARISING OUT OF OR PERTAINING TO THE FACT THAT THE COMPANY INDEMNIFIED PARTY IS OR WAS A DIRECTOR, whether asserted or claimed prior toOFFICER OR EMPLOYEE OF THE COMPANY OR IS OR WAS SERVING AT THE REQUEST OF THE COMPANY AS A DIRECTOR, at or after the Effective TimeOFFICER OR EMPLOYEE OF ANOTHER PERSON, WHETHER ASSERTED OR CLAIMED PRIOR TO, AT OR AFTER THE EFFECTIVE TIME, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. In the event of any such ActionClaim covered under this Section 6.09, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action Claim from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request thereforParent; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL applicable Law or the Surviving CompanyCorporation’s certificate of incorporation or by-lawsOrganizational Documents, to repay such advances if it is ultimately determined by final adjudication that such Person person is not entitled to indemnification and (ii) the Surviving Company Corporation shall cooperate in good faith in the defense of any such matter.
(b) For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) In the event that Parent, Parent or the Surviving Company Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or Surviving Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving CompanyCorporation, as applicablethe case may be, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving CompanyCorporation, as applicablethe case may be, assume the obligations covenants and agreements set forth in this Section 6.046.09.
(dc) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as For a period of or after the Effective Time to, purchase a six (6) -year prepaid “tail” years from and after the Effective Time, the Surviving Corporation shall either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance policy and fiduciary liability insurance policy maintained by the Company or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount either case, of not less than the existing coverage and to have having other terms not materially less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the with insurance carriers having at least an “Pre-Paid Tail”A” rating by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance); provided , except that in no event shall the cost of any Surviving Corporation be required to pay with respect to such Pre-Paid Tail insurance policies in respect of any one policy year exceed more than 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that and if the total cost Surviving Corporation is unable to obtain the insurance required by this Section 6.09(c) it shall obtain as much comparable insurance as possible for maintaining the years within such Pre-Paid Tail exceeds six (6) year period for an annual premium equal to the Maximum Amount, then in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date the Company (after prior consultation may, at its option, purchase a “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors, officers and employees who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not materially less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with Parent) may obtain, respect to claims arising from facts or following Closing, Parent shall obtain a Pre-Paid Tail with events that occurred on or before the maximum coverage available Effective Time for a total period of not less than six (6) years; provided that in no event shall the cost not to of any such tail policy in respect of any one policy year exceed the Maximum Amount. The Surviving Company Corporation shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.
(fd) The provisions of this Section 6.04 6.09 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, representatives and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) Parent agrees that that, for a period of six years from and after the Effective Time, all rights existing as of the Agreement Date to indemnification, advancement of expenses and exculpation from liabilities Liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or and/or former directors, officers or employees of the Company and its the Company Subsidiaries as provided in their respective certificates memorandum and articles of incorporation association or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as the Company Subsidiaries in effect on as of the date of this Agreement, shall Agreement Date will continue in full force and effect in accordance with their terms, and Parent will cause the Surviving Company and the Company Subsidiaries to perform their respective obligations thereunder. From Without limiting the foregoing, from and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers Parent shall, and directors) shall cause the Surviving Company agrees that it will to, indemnify and hold harmless each individual who was prior to or is as of the date of this AgreementAgreement Date, or who becomes prior to the Effective Time, a director director, officer or officer employee of the Company or any of its the Company Subsidiaries or who was prior to or is as of the date of this AgreementAgreement Date, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its the Company Subsidiaries as a director director, officer or officer employee of another Person (the “Company Indemnified Parties”), against all claims, lossesLiabilities, liabilities, damages, judgments, inquiriesJudgments, fines, amounts paid in settlement and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative Action (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated herebyTransactions)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an a director, officer or director employee of the Company or any of its Subsidiaries Company Subsidiary or is or was serving at the request of the Company or any of its Subsidiaries Company Subsidiary as a director director, officer or officer employee of another Person, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. In the event of any such Action, (ix) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) 10 Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or applicable Law, the Surviving Company’s certificate memorandum and articles of incorporation association (or by-lawscomparable organizational documents) or any applicable indemnification agreement, to repay such advances if it is ultimately determined by final non-appealable adjudication that such Person is not entitled to indemnification and (iiy) the Surviving Company shall will cooperate in the defense of any such matter. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not (and Parent shall cause the Surviving Company not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, action, suit, proceeding or investigation, unless such settlement, compromise, consent or termination includes an unconditional release of all of the Company Indemnified Parties covered by the claim, action, suit, proceeding or investigation from all liability arising out of such claim, action, suit, proceeding or investigation.
(b) For a period of six (6) years following from and after the Effective Time, the Surviving Company shallwill, and Parent shall will cause the Surviving Company to, either maintain or cause to be maintained in effect the provisions current policies of directors’ and officers’ liability insurance, fiduciary liability insurance and employment practices liability insurance maintained by the Company or the Company Subsidiaries or provide substitute policies for the Company and Company Subsidiaries and the insured Persons who are covered by such insurance currently maintained by the Company and the Company Subsidiaries (the “Current Insurance”), in its certificate of incorporation either case, with limits not less than the existing coverage and by-laws having other terms not less favorable to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, insured Persons than the Current Insurance with respect to claims and matters arising from facts or circumstances occurring at events that occurred on or prior to before the Effective Time, on except that in no event will the same basis as set forth Surviving Company be required to pay with respect to such insurance policies in respect of any one policy year more than 300% of the aggregate annual premium most recently paid by the Company Charter and Company By-laws in effect on the date of this Agreement, prior to the fullest extent permitted from time Agreement Date (the “Maximum Amount”), and if the Surviving Company is unable to time under Applicable Law, which provisions shall not be amended except as obtain the insurance required by Applicable Law or except this Section 6.04(b) it will obtain as much comparable insurance as possible for each year within such six-year period for an annual premium equal to make changes permitted by Applicable Law that would enlarge the scope Maximum Amount. In lieu of such insurance, prior to the Closing Date the Company Indemnified Partiesmay, at its option (and shall, if Parent so requests), purchase “tail” directors’ indemnification rights and officers’ liability insurance, fiduciary liability insurance and employment practices liability insurance for a period of six years for the Company and the Company Subsidiaries and the insured Persons who are covered by Current Insurance, such tail insurance to provide coverage with limits not less than, and to have other terms not less favorable to the insured Persons than, the Current Insurance with respect to claims arising from facts or events that occurred on or before the Effective Time; provided that in no event will the aggregate cost of any such tail insurance exceed the Maximum Amount. Parent will cause the Surviving Company to, and the Surviving Company will, maintain such insurance policies in full force and effect without any amendment adverse to the insured Persons thereunder, and continue to honor the obligations thereunder.
(c) The provisions of this Section 6.04 (i) will survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties) to the extent of such indemnified or insured party’s interest herein, and his or her heirs and estates, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
(d) From and after the Effective Time, Parent shall guarantee the prompt payments of the obligations of the Surviving Company and the Company Subsidiaries under this Section 6.04.
(e) In the event that Parent, 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 surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving Company, as applicable, shall Company will cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company assume the Surviving Company, as applicable, assume the ’s obligations set forth in this Section 6.04.
(d) Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount. The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.046.04.
(f) The provisions of Nothing in this Agreement is intended to, or will be construed to, release, waive or impair any rights to insurance claims pursuant to any applicable insurance policy or indemnification agreement, it being understood and agreed that the indemnification provided for in this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended 6.04 is not prior to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that for any such Person may have by contract claims pursuant to such policies or otherwiseagreements.
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