Indemnification, Exculpation and Insurance. (a) All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any person who is or prior to the Effective Time becomes, or has been at any time prior to the date of this Agreement, a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company, any of its Subsidiaries or any of their respective predecessors as provided in the Company Certificate of Incorporation, the Company By-laws, the organizational documents of any Subsidiary of the Company or any indemnification agreement, between a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company or any of its Subsidiaries and the Company or any of its Subsidiaries (in each case, as in effect on the date hereof) shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such director, officer, employee or agent. (b) Without limiting Section 5.05(a) or any rights of any director or officer of the Company or any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) pursuant to any indemnification agreement, from and after the Effective Time, in the event of any threatened or actual claim, action, suit, proceeding or investigation (a “Claim”), whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party is or was a director (including in a capacity as a member of any board committee) or officer of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Effective Time, TopCo 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 attorney’s fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by applicable Law), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. TopCo shall not settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification would reasonably be expected to be sought by an Indemnified Party hereunder, unless (i) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification of such Indemnified Party from any and all liability arising out of such Claim; or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could seek indemnification hereunder. TopCo’s obligations under this Section 5.05(b) shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the final disposition of such Claim. (c) The Company shall use commercially reasonable efforts to obtain, at or prior to the Effective Time, prepaid (or “tail”) directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time for six years from the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that, without the prior written consent of TopCo, the Company may not expend therefor in excess of 300% of the amount (the “Annual Amount”) paid by the Company for coverage for the most recently completed 12-month period prior to the date of this Agreement (such amount, equal to 300% of the annual amount, the “D&O Tail Premium Cap”). In the event the Company does not obtain such “tail” insurance policies, then, for a period of six years from the Effective Time, TopCo shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that (i) TopCo may substitute therefor policies of a reputable and financially sound insurance company containing terms, including with respect to coverage and amounts, no less favorable to any Indemnified Party and (ii) in satisfying its obligation under this Section 5.05(c), TopCo shall not be obligated to pay for coverage for any 12-month period aggregate premiums for insurance in excess of the D&O Tail Premium Cap, it being understood and agreed that TopCo shall nevertheless be obligated to provide such coverage as may be obtained for the Annual Amount. (d) In the event that TopCo 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 a substantial portion of its properties and other assets to any person, then, and in each such case, proper provision shall be made so that the applicable successors and assigns or transferees expressly assume the obligations set forth in this Section 5.05. (e) The provisions of this Section 5.05 are intended to be for the benefit of, and will be enforceable by, each Indemnified Party, his or her heirs and his or her representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract or otherwise. The obligations of TopCo under this Section 5.05 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.05.
Appears in 3 contracts
Samples: Merger Agreement (Williams Companies Inc), Merger Agreement (Williams Companies Inc), Merger Agreement
Indemnification, Exculpation and Insurance. (a) All From and after the Effective Time, Parent and Merger Sub agree that all rights to indemnification indemnification, advancement of expenses and exculpation from liabilities of each former and 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 another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise if such service was at the request or for acts the benefit of the Company or omissions any Company Subsidiary (each, together with such person’s heirs, executors or administrators, a “Company Indemnified Party”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit or proceeding, whether civil, criminal, administrative or investigative, with respect to matters existing or occurring at or prior to the Effective Time (including this Agreement and rights the transactions and actions contemplated hereby), arising out of or pertaining to advancement of expenses relating thereto now existing in favor of any person who the fact that the Company Indemnified Party is or prior to the Effective Time becomes, was an officer or has been at any time prior to the date of this Agreement, a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company, any of its Subsidiaries or any of their respective predecessors as provided in the Company Certificate of Incorporation, the Company By-laws, the organizational documents of any Subsidiary director of the Company or any indemnification Company Subsidiary or is or was serving at the request of the Company or any Company Subsidiary as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) as in effect on the date of this Agreement or in any agreement, between a directortrue and complete copy of which agreement has been provided by the Company to Parent prior to the date hereof, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of which the Company or any of its Subsidiaries and the Company or any of its Subsidiaries (in each caseis a party, as in effect on the date hereof) shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such director, officer, employee or agent.
(b) Without limiting Section 5.05(a) or any rights of any director or officer of the Company or any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) pursuant to any indemnification agreement, from and after the Effective Time, in the event of any threatened or actual claim, action, suit, proceeding or investigation (a “Claim”), whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party is or was a director (including in a capacity as a member of any board committee) or officer of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Effective Time, TopCo 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 attorney’s fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by applicable Law), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. TopCo shall not settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification would reasonably be expected to be sought by an Indemnified Party hereunder, unless (i) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification of such Indemnified Party from any and all liability arising out of such Claim; or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could seek indemnification hereunder. TopCo’s obligations under this Section 5.05(b) shall continue in full force and effect for in accordance with their terms. For a period of six years from the Effective Time, Parent shall, and shall cause the Surviving Company 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 Effective Time or in any agreement, a true and complete copy of which agreement has been provided by the Company to Parent prior to the date hereof, to which the Company or any of its Subsidiaries is a party, in each case in effect immediately prior to the Effective Time and shall not amend, repeal or otherwise modify any such provisions or the exculpation, indemnification or advancement of expenses provisions of the Surviving Company’s articles of incorporation and by-laws set forth in Exhibit A and Exhibit B in any manner that would adversely affect the rights thereunder of any individual who immediately before the Effective Time was a Company Indemnified Party; provided, however, that all rights to indemnification in respect of any Claim Action pending or asserted or any claim made within such period shall continue until the final disposition of such Claim.
(c) The Company shall use commercially reasonable efforts to obtain, at Action or prior to the Effective Time, prepaid (or “tail”) directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time for six years from the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those resolution of such policies in effect on the date of this Agreement; provided, however, that, without the prior written consent of TopCo, the Company may not expend therefor in excess of 300% of the amount (the “Annual Amount”) paid by the Company for coverage for the most recently completed 12-month period prior to the date of this Agreement (such amount, equal to 300% of the annual amount, the “D&O Tail Premium Cap”). In the event the Company does not obtain such “tail” insurance policies, then, for a period of six years from the Effective Time, TopCo shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that (i) TopCo may substitute therefor policies of a reputable and financially sound insurance company containing terms, including with respect to coverage and amounts, no less favorable to any Indemnified Party and (ii) in satisfying its obligation under this Section 5.05(c), TopCo shall not be obligated to pay for coverage for any 12-month period aggregate premiums for insurance in excess of the D&O Tail Premium Cap, it being understood and agreed that TopCo shall nevertheless be obligated to provide such coverage as may be obtained for the Annual Amountclaim.
(d) In the event that TopCo 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 a substantial portion of its properties and other assets to any person, then, and in each such case, proper provision shall be made so that the applicable successors and assigns or transferees expressly assume the obligations set forth in this Section 5.05.
(e) The provisions of this Section 5.05 are intended to be for the benefit of, and will be enforceable by, each Indemnified Party, his or her heirs and his or her representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract or otherwise. The obligations of TopCo under this Section 5.05 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.05.
Appears in 3 contracts
Samples: Merger Agreement (Martin Marietta Materials Inc), Merger Agreement (Martin Marietta Materials Inc), Merger Agreement (Texas Industries Inc)
Indemnification, Exculpation and Insurance. (a) All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any person who is or prior to the Effective Time becomes, or has been at any time prior to the date of this Agreement, a director, officer, employee director or agent (including as a fiduciary with respect to a Company Benefit Plan) officer of the Company, Company or any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) as provided in the Company Certificate of Incorporation, the Company By-lawsBylaws, the organizational documents of any Subsidiary of the Company or any indemnification agreement, agreement between a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company or any of its Subsidiaries such Indemnified Party and the Company or any of its Subsidiaries (in each case, as in effect on the date hereof or, with respect to any indemnification agreement entered into after the date hereof, to the extent such agreement was entered into in compliance with the applicable provisions of this Agreement and the terms thereof are no more favorable in any material respect to the Indemnified Party that is the beneficiary thereof than the terms of any indemnification agreement included as an exhibit in the Filed SEC Documents) shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such director, officer, employee or agentIndemnified Party.
(b) Without limiting Section 5.05(a6.05(a) or any rights of any director or officer of the Company or any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) Party pursuant to any indemnification agreement, from and after the Effective TimeShare Acceptance Date, in the event of any threatened or actual claim, action, suit, proceeding or investigation (a “Claim”), whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party is or was a director (including in a capacity as a member of any board committee) or officer of the Company, Company or any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the TransactionsSubsidiaries, whether in any case asserted or arising before or after the Effective Time, TopCo shall each of Parent and the Surviving Corporation (or the Company prior to the Effective Time) shall, jointly and severally, 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 final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by applicable Lawsuch Indemnified Party to repay such advances if it is ultimately determined in a final, non-appealable judgment by a court of competent jurisdiction that such Indemnified Party is not entitled to indemnification), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. TopCo shall not settle, compromise Parent and the Surviving Corporation (or consent the Company prior to the entry of any judgment in any threatened or actual Claim for which indemnification would reasonably be expected to be sought by an Indemnified Party hereunder, unless (iEffective Time) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification of such Indemnified Party from any and all liability arising out of such Claim; or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could is reasonably likely to seek indemnification hereunder. TopCoParent’s and the Surviving Corporation’s obligations under this Section 5.05(b6.05(b) shall continue in full force and effect for a period of until six (6) years from after the Effective Time; provided, however, that all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the final disposition of such Claim.
(c) The Company shall use commercially reasonable efforts to may obtain, at or prior to the Effective Time, prepaid (or “tail”) directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time for six (6) years from the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that, without the prior written consent of TopCoParent, the Company may not expend therefor in excess of 300% two hundred fifty percent (250%) of the amount set forth on Section 6.05(c) of the Company Disclosure Schedule (the “Annual Amount”) paid by the Company for coverage for the most recently completed 12-month period prior to the date of this Agreement (such amount, equal to 300% of the annual amount, the “D&O Tail Premium Cap”). In the event the Company does not obtain such “tail” insurance policies, then, for a period of six (6) years from the Effective Time, TopCo Parent shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that (i) TopCo Parent may substitute therefor policies of a reputable and financially sound insurance company with a rating of A+ or higher by Standard & Poor’s containing terms, including with respect to coverage and amounts, no less favorable to any Indemnified Party and (ii) Party; provided further, however, that in satisfying its their obligation under this Section 5.05(c6.05(c), TopCo Parent shall not be obligated to pay for coverage for any twelve (12-) month period aggregate premiums for insurance in excess of two hundred fifty percent (250%) of the D&O Tail Premium CapAnnual Amount, it being understood and agreed that TopCo Parent shall nevertheless be obligated to provide such coverage as may be obtained for the Annual Amount.
(d) In the event that TopCo Parent or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a substantial portion of its properties and other assets to any person, or if Parent dissolves the Surviving Corporation, then, and in each such case, Parent shall cause proper provision shall to be made so that the applicable successors and assigns or transferees expressly assume the obligations set forth in this Section 5.056.05.
(e) The provisions of this Section 5.05 6.05 are intended to be for the benefit of, and will be enforceable by, each Indemnified Party, his or her heirs and his or her representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract contract or otherwise. The obligations of TopCo under this Section 5.05 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.05.
Appears in 2 contracts
Samples: Merger Agreement (King Pharmaceuticals Inc), Merger Agreement (Alpharma Inc)
Indemnification, Exculpation and Insurance. (a) All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any person who is or prior to the Effective Time becomes, or has been at any time prior to the date of this Agreement, a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Planan employee benefit plan) of the Company, any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) as provided in the Company Certificate Articles of IncorporationOrganization, the Company By-lawsBylaws, the organizational documents of any Subsidiary of the Company or any indemnification agreement, agreement between a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company or any of its Subsidiaries such Indemnified Party and the Company or any of its Subsidiaries (in each case, as in effect on the date hereof or, with respect to any indemnification agreement entered into after the date hereof, to the extent the terms thereof are no more favorable in any material respect to the Indemnified Party that is the beneficiary thereof than the terms of any indemnification agreement included as an exhibit in the Filed SEC Documents) shall survive the Merger Share Exchange and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such director, officer, employee or agentIndemnified Party.
(b) Without limiting Section 5.05(a) or any rights of any director or officer of the Company or any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) Party pursuant to any indemnification agreement, from and after the Effective Time, in the event of any threatened or actual claim, action, suit, proceeding or investigation (a “Claim”), whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party is or was a director (including in a capacity as a member of any board committee) ), officer, employee or officer agent of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Effective Time, TopCo Acquired Corporation 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 final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by applicable Law), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. TopCo Parent hereby guarantees and shall not be jointly and severally liable for any obligation of Acquired Corporation under this Section 5.05(b) as it were its own obligation. None of Parent or the Acquired Corporation shall settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification would reasonably be expected to could be sought by an Indemnified Party hereunder, unless (i) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification of such Indemnified Party from any and all liability arising out of such Claim; Claim or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo Parent and the Acquired Corporation shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could seek indemnification hereunder. TopCoParent’s and the Acquired Corporation’s obligations under this Section 5.05(b) shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the final disposition of such Claim.
(c) The Company shall use commercially reasonable efforts to obtain, at or prior to the Effective Time, prepaid (or “tail”) directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time for six years from the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that, without the prior written consent of TopCo, the Company may not expend therefor in excess of 300% of the amount (the “Annual Amount”) paid by the Company for coverage for the most recently completed 12-month period prior to the date of this Agreement (such amount, equal to 300% of the annual amount, the “D&O Tail Premium Cap”). In the event the Company does not obtain such “tail” insurance policies, then, for a period of six years from the Effective Time, TopCo shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that (i) TopCo may substitute therefor policies of a reputable and financially sound insurance company containing terms, including with respect to coverage and amounts, no less favorable to any Indemnified Party and (ii) in satisfying its obligation under this Section 5.05(c), TopCo shall not be obligated to pay for coverage for any 12-month period aggregate premiums for insurance in excess of the D&O Tail Premium Cap, it being understood and agreed that TopCo shall nevertheless be obligated to provide such coverage as may be obtained for the Annual Amount.
(d) In the event that TopCo 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 a substantial portion of its properties and other assets to any person, then, and in each such case, proper provision shall be made so that the applicable successors and assigns or transferees expressly assume the obligations set forth in this Section 5.05.
(e) The provisions of this Section 5.05 are intended to be for the benefit of, and will be enforceable by, each Indemnified Party, his or her heirs and his or her representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract or otherwise. The obligations of TopCo under this Section 5.05 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.05.
Appears in 2 contracts
Samples: Share Exchange Agreement (Millipore Corp /Ma), Share Exchange Agreement (Millipore Corp /Ma)
Indemnification, Exculpation and Insurance. (a) All rights to indemnification and exculpation from liabilities for acts In the event of any threatened or omissions occurring at actual claim, action, suit, proceeding or prior to the Effective Time and rights to advancement of expenses relating thereto now existing investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in favor of which any person who is or prior to the Effective Time becomesnow, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director, officer, officer or employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company, any of its Subsidiaries or any of their respective predecessors as provided in the Company Certificate of Incorporation, the Company By-laws, the organizational documents of any Subsidiary of the Company or any indemnification agreement, between a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company or any of its Subsidiaries and the Company (including in his or any of its Subsidiaries (in each case, her role as in effect on the date hereof) shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such director, officer, employee or agent.
(b) Without limiting Section 5.05(a) or any rights of any director or officer a fiduciary of the Company employee benefit plans of the Company, if applicable) (the "Indemnified Parties") is, or any of its Subsidiaries or any of their respective predecessors (eachis threatened to be, an “Indemnified Party”) pursuant to any indemnification agreement, from and after the Effective Time, in the event of any threatened or actual claim, action, suit, proceeding or investigation (made a “Claim”), whether civil, criminal or administrative, party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party he or she is or was a director (including in a capacity as a member of any board committee) director, officer or officer employee of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactionstransactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, TopCo shall indemnify the parties hereto agree to cooperate and hold harmless, as use their commercially reasonable efforts to defend against and respond thereto. It is understood and agreed that after the Effective
(a) except to the fullest extent permitted such failure to notify materially prejudices Parent. Upon written request by Lawan Indemnified Party, each Parent shall advance all expenses incurred by such Indemnified Party against in connection with any lossessuch claim, claims, damages, liabilities, costs, expenses (including attorney’s fees and expenses in advance of the final disposition of any claimaction, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by applicable Law), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. TopCo shall not settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification would reasonably be expected to be sought by an Indemnified Party hereunder, unless (i) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification of such Indemnified Party from any and all liability arising out of such Claim; or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could seek is a party or is entitled to indemnification hereunderpursuant to this Section 5.05(a). TopCo’s The right to indemnification and the advancement of expenses conferred by this Section 5.05(a) shall not be exclusive of any other rights that any Indemnified Party seeking indemnification or advancement of expenses may be entitled to or hereafter acquire under any statute, agreement or provision of the Company's or the Surviving Corporation's certificate of incorporation or bylaws or otherwise. Parent's obligations under this Section 5.05(b5.05(a) shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any Claim claim (a "Claim") asserted or made within such period shall continue until the final disposition of such Claim.
(cb) The Company Without limiting the foregoing, Merger Subsidiary and Parent agree that (i) the certificate of incorporation and bylaws of the Surviving Corporation shall use commercially reasonable efforts contain the provisions with respect to obtainindemnification and limitation of liability set forth in the Company's certificate of incorporation and bylaws on the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of individuals who at or any time prior to the Effective TimeTime were directors or officers of the Company, prepaid and (or “tail”ii) directors’ all rights to indemnification and officers’ liability insurance policies in respect of exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time for six years from now existing in favor of the current or former directors or officers of the Company and the Subsidiaries as provided in any indemnification agreements of the Company shall be assumed by the Surviving Corporation in the Merger, without further action, as of the Effective Time, covering each Indemnified Party on terms with respect to such coverage Time and amounts no less favorable than those of such policies shall survive the Merger and shall continue in full force and effect on the date of this Agreement; provided, however, that, without the prior written consent of TopCo, the Company may not expend therefor in excess of 300% of the amount (the “Annual Amount”) paid by the Company for coverage for the most recently completed 12-month period prior to the date of this Agreement (such amount, equal to 300% of the annual amount, the “D&O Tail Premium Cap”)extent consistent with applicable law) in accordance with their terms. In the event that Parent or the Company does not obtain such “tail” insurance policies, then, for a period of six years from the Effective Time, TopCo shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that (i) TopCo may substitute therefor policies of a reputable and financially sound insurance company containing terms, including with respect to coverage and amounts, no less favorable to any Indemnified Party and (ii) in satisfying its obligation under this Section 5.05(c), TopCo shall not be obligated to pay for coverage for any 12-month period aggregate premiums for insurance in excess of the D&O Tail Premium Cap, it being understood and agreed that TopCo shall nevertheless be obligated to provide such coverage as may be obtained for the Annual Amount.
(d) In the event that TopCo Surviving Corporation or any of its their respective successors or assigns (iA) consolidates with or merges into any other person Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (iiB) transfers or conveys all or a substantial portion substantially all of its properties and other assets to any personPerson, then, and in each such case, proper provision shall will be made so that the applicable successors and assigns of Parent or transferees expressly the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 5.05.
(ec) For six (6) years after the Effective Time, the Surviving Corporation shall provide officers' and directors' liability insurance in respect of acts or omissions occurring prior to the Effective Time, including but not limited to the transactions contemplated by this Agreement, covering each person currently covered by the Company's officers' and directors' liability insurance policy, or who becomes covered by such policy prior to the Effective Time, on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date hereof, provided, however, that in satisfying its obligation under this Section 5.05 the Surviving Corporation shall not be obligated to pay annual premiums in excess of 200% of the amount per annum the Company is currently paying for such coverage (the "Insurance Amount"); provided further, that if the Insurance Amount is insufficient to maintain or procure the coverage contemplated by this Section 5.05(c), then the Surviving Corporation shall use commercially reasonable efforts to obtain as much comparable insurance as is available for the Insurance Amount.
(d) For six (6) years after the Effective Time, Parent shall cause the Surviving Corporation to honor its commitments and obligations pursuant to this Section 5.05. The provisions of this Section 5.05 are (i) intended to be for the benefit of, and will be enforceable by, each Indemnified Partyindemnified party, his or her heirs and his or her representatives, representatives and are (ii) in addition to, and not in substitution foror, any other rights to indemnification or contribution that any such person may have by Contract contract or otherwise. The obligations of TopCo under this Section 5.05 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.05.
Appears in 2 contracts
Samples: Merger Agreement (Provantage Health Services Inc), Merger Agreement (Shopko Stores Inc)
Indemnification, Exculpation and Insurance. (a) All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any person who is or prior to the Effective Time becomes, or has been at any time prior to the date of this Agreement, a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company, any of its Subsidiaries or any of their respective predecessors as provided in the Company Certificate of Incorporation, the Company By-lawsBylaws, the organizational documents of any Subsidiary of the Company or any indemnification agreementagreement set forth in Section 5.05(a) of the Company Disclosure Letter, between a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company or any of its Subsidiaries and the Company or any of its Subsidiaries (in each case, as in effect on the date hereof) shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such director, officer, employee or agent.
(b) Without limiting Section 5.05(a) or any rights of any director or officer of the Company or any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) pursuant to any indemnification agreement, from and after the Effective Time, in the event of any threatened or actual claim, action, suit, proceeding or investigation (a “Claim”), whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party is or was a director (including in a capacity as a member of any board committee) or officer of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Effective Time, TopCo shall Parent and the Surviving Corporation shall, jointly and severally, 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 final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by applicable Law), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. TopCo None of Parent or the Surviving Corporation shall not settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification would reasonably be expected to be sought by an Indemnified Party hereunder, unless (i) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification of such Indemnified Party from any and all liability arising out of such Claim; Claim or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo Parent and the Surviving Corporation shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could seek indemnification hereunder. TopCoParent’s and the Surviving Corporation’s obligations under this Section 5.05(b) shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the final disposition of such Claim.
(c) The Company may (or, at the request of Parent, shall use commercially reasonable efforts to to) obtain, at or prior to the Effective Time, prepaid (or “tail”) directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time for six years from the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that, without the prior written consent of TopCoParent, the Company may not expend therefor in excess of 300% of the amount (the “Annual Amount”) paid by the Company for coverage for the most recently completed 12-month period prior to the date of this Agreement (such amount, equal to 300% of the annual amount, the “D&O Tail Premium Cap”). In the event the Company does not obtain such “tail” insurance policies, then, for a period of six years from the Effective Time, TopCo Parent shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that (i) TopCo Parent may substitute therefor policies of a reputable and financially sound insurance company containing terms, including with respect to coverage and amounts, no less favorable to any Indemnified Party and (ii) in satisfying its obligation under this Section 5.05(c), TopCo Parent shall not be obligated to pay for coverage for any 12-month period aggregate premiums for insurance in excess of the D&O Tail Premium Cap, it being understood and agreed that TopCo Parent shall nevertheless be obligated to provide such coverage as may be obtained for the Annual Amount.
(d) In the event that TopCo Parent or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a substantial portion of its properties and other assets to any person, or if Parent dissolves the Surviving Corporation, then, and in each such case, Parent shall cause proper provision shall to be made so that the applicable successors and assigns or transferees expressly assume the obligations set forth in this Section 5.05.
(e) The provisions of this Section 5.05 are intended to be for the benefit of, and will be enforceable by, each Indemnified Party, his or her heirs and his or her representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract or otherwise. The obligations of TopCo the Parent and the Surviving Corporation under this Section 5.05 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.05.
Appears in 2 contracts
Samples: Merger Agreement (Covance Inc), Merger Agreement (Laboratory Corp of America Holdings)
Indemnification, Exculpation and Insurance. (a) All rights to indemnification against and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time and rights to advancement of expenses relating thereto (including any matters arising in connection with the transactions contemplated by this Agreement), now existing in favor of the current or former directors or officers of the Company as provided in the Company Certificate of Incorporation, the Company Bylaws, any person resolution adopted by the Company Board or any indemnification agreement between such directors and officers and the Company or its Subsidiaries in each case, as in effect immediately prior to the execution and delivery of this Agreement, and, in the case of any such resolution or indemnification agreement, as set forth on Section 6.4(a) of the Company Disclosure Letter, shall be assumed by the Surviving Company 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 certificate of incorporation and the bylaws of the Surviving Company shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of individuals who is were directors or officers of the Company prior to the Effective Time becomesthan are presently set forth in the Company Certificate of Incorporation and the Company Bylaws, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) From and after the Effective Time, in the event of any pending, threatened or actual claim, action, suit, proceeding or investigation (each, a “Claim”) in which any Person who is now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director, officer, employee director or agent (including as a fiduciary with respect to a Company Benefit Plan) officer of the Company, any of its Subsidiaries or any of their respective predecessors as provided in (the Company Certificate of Incorporation, the Company By-laws, the organizational documents of any Subsidiary of the Company or any indemnification agreement, between a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company or any of its Subsidiaries and the Company or any of its Subsidiaries (in each case, as in effect on the date hereof) shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such director, officer, employee or agent.
(b) Without limiting Section 5.05(a) or any rights of any director or officer of the Company or any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified PartyParties”) pursuant is, or is threatened to any indemnification agreementbe, from and after the Effective Time, in the event of any threatened or actual claim, action, suit, proceeding or investigation (made a “Claim”), whether civil, criminal or administrative, party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party he or she is or was a director (including in a capacity as a member of any board committee) or officer of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement acts or omissions by an Indemnified Party in the Indemnified Party’s capacity as director or officer of the Company or such Subsidiary or any of their respective predecessors or taken at the Transactionsrequest of the Company or such Subsidiary or any of their respective predecessors, whether in any case asserted or arising before or after Parent and the Effective TimeSurviving Company, TopCo jointly and severally, shall indemnify and hold harmless, as and to the fullest extent permitted by applicable Law, each such Indemnified Party against any losses, claims, damages, liabilities, reasonable and documented costs, reasonable and documented expenses (including reasonable attorney’s fees and expenses expenses, incurred in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by applicable LawClaim), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. TopCo Neither Parent nor the Surviving Company shall not settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification would reasonably be expected to be has been sought by an Indemnified Party hereunder, unless (i) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification of such Indemnified Party from any and all liability arising out of such Claim; Claim or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo Parent and the Surviving Company shall cooperate with advance all reasonable and documented fees and expenses (including without limitation documented fees and expenses of legal counsel, experts, litigation consultants, and the cost of any appeal bonds) incurred by an Indemnified Party in the defense of connection with any matter for which such Claim. The Indemnified Party could seek shall qualify for advances, to the fullest extent permitted under applicable Law, so long as the Indemnified Party undertakes to repay the advance to the extent that it is ultimately determined that the Indemnified Party is not entitled to be indemnified by the Company under the provisions of this Agreement, the organizational documents of the Surviving Company, any indemnification hereunderagreements set forth in Schedule 6.4(a), or applicable Law. TopCoParent’s and the Surviving Company’s obligations under this Section 5.05(b6.4(c) shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any Claim asserted or made prior to the Effective Time or within such six (6) year period shall continue until the final disposition of such Claim.
(cd) The Any Indemnified Party wishing to claim indemnification under Section 6.4(c), upon learning of any such Claim, shall promptly notify Parent thereof, but the failure to so notify shall not relieve Parent or the Surviving Company of any liability it may have to such Indemnified Party except to the extent such failure prejudices the indemnifying party. In the event of any such Claim, (i) Parent or the Surviving Company shall use commercially have the right to assume and control the defense thereof with counsel selected by Parent, which counsel shall be reasonably acceptable to the Indemnified Party; provided, however, that the Indemnified Party shall be permitted to participate in the defense of such Claim at its own expense, except that if Parent or the Surviving Company elects not to assume such defense or there are issues which raise conflicts of interest between Parent or the Surviving Company and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them (it being further understood and agreed that, in any such case, to the extent that there are issues which raise conflicts of interest among the Indemnified Parties, the Indemnified Parties may retain more than one counsel to the extent necessary to address such conflicts of interest), and Parent or the Surviving Company shall pay all reasonable efforts fees and expenses of such counsel(s) for the Indemnified Parties promptly as statements therefor are received and (ii) Parent and the Surviving Company shall not be liable for any settlement or compromise effected without their prior written consent (except to obtainthe extent Parent elects not to assume the defense of any Claim); provided that Parent and the Surviving Company shall not have any obligation to any Indemnified Party if any and when a court of competent jurisdiction shall ultimately determine, at and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law. Each of Parent, the Company, the Surviving Company and the Indemnified Parties shall cooperate in the defense of any Claim and shall provide access to properties and individuals as reasonably requested and furnish or prior cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Prior to the Effective Time, prepaid the Company shall use its reasonable best efforts to (or and if the Company is unable to, Parent shall cause the Surviving Company as of the Effective Time to) obtain and fully pay for “tail”” insurance policies with a claims period of at least six (6) years from and after the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance and fiduciary liability insurance (collectively, “D&O Insurance”) with benefits and levels of coverage at least as favorable as the Company’s existing policies in respect of acts existing or omissions occurring at or prior to the Effective Time for six years from (including in connection with this Agreement or the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreementtransactions or actions contemplated hereby); provided, however, that, without that such “tail” insurance policies shall not require the prior written consent payment of TopCo, the Company may not expend therefor an aggregate premium in excess of three hundred percent (300% %) of the amount (the “Annual Amount”) aggregate annual premium most recently paid by the Company for coverage for the most recently completed 12-month period prior to the date of this Agreement (such amount, equal hereof to 300% of maintain the annual amount, the “D&O Tail Premium Cap”)Insurance. In the event If the Company does not and the Surviving Company shall for any reason fail to obtain such “tail” insurance policiespolicies as of the Effective Time, thenthe Surviving Company shall, and Parent shall cause the Surviving Company to, continue to maintain in effect for a period of at least six (6) years from and after the Effective Time, TopCo shall maintain Time the D&O Insurance in effect place as of the date hereof with benefits and levels of coverage at least as favorable as that provided under the Company’s current directors’ existing policies as of the date hereof, or the Surviving Company shall, and officers’ liability insurance policies in respect Parent shall cause the Surviving Company to purchase comparable D&O Insurance for such six (6)-year period with benefits and levels of acts or omissions occurring coverage at or prior to least as favorable as provided under the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such Company’s existing policies in effect on as of the date of this Agreementhereof; provided, however, that (i) TopCo may substitute therefor policies of a reputable and financially sound insurance company containing terms, including with respect to coverage and amounts, no less favorable to any Indemnified Party and (ii) in satisfying its obligation under this Section 5.05(c), TopCo neither Parent nor the Surviving Company shall not be obligated required to pay an aggregate annual premium for coverage for any 12-month period aggregate premiums for insurance such D&O Insurance or comparable D&O Insurance in excess of three hundred percent (300%) of the aggregate annual premium most recently paid by the Company prior to the date hereof to maintain the D&O Tail Premium Cap, it being understood and agreed that TopCo shall nevertheless be obligated to provide such coverage as may be obtained for the Annual AmountInsurance.
(df) Notwithstanding anything contained in Section 9.1 or Section 9.6 hereof to the contrary, this Section 6.4 shall survive the consummation of the Merger and shall be binding, jointly and severally, on all successors and assigns of Parent, the Surviving Company and their respective Subsidiaries, and shall be enforceable by the Indemnified Parties and their successors, heirs or representatives, each of whom is a third party beneficiary of this Section 6.4. In the event that TopCo 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 corporation company or entity of such consolidation or merger or (ii) transfers or conveys all or a substantial portion 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 shall to be made so that the applicable such successors and assigns or transferees shall expressly assume (including by operation of Law) the obligations set forth in this Section 5.05.
(e) The provisions of this Section 5.05 are intended to be for the benefit of, and will be enforceable by, each Indemnified Party, his or her heirs and his or her representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract or otherwise6.4. The obligations of TopCo Parent and Merger Sub under this Section 5.05 will 6.4 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without to whom this Section 6.4 applies unless (i) such termination or modification is required by applicable Law or (ii) the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any affected Indemnified Party shall have consented in enforcing the indemnity and other obligations provided in writing to such termination or modification.
(g) The provisions of this Section 5.056.4 are in addition to, and not in substitution of, any other rights to indemnification or contribution that any such Person may have from the Company, Surviving Company or any other Person by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Bristol Myers Squibb Co), Merger Agreement (Amylin Pharmaceuticals Inc)
Indemnification, Exculpation and Insurance. (a) All rights to indemnification and exculpation from liabilities for acts In the event of any threatened or omissions occurring at actual claim, action, suit, proceeding or prior to the Effective Time and rights to advancement of expenses relating thereto now existing investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in favor of which any person who is or prior to the Effective Time becomesnow, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director, officer, officer or employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company, any of its Subsidiaries or any of their respective predecessors as provided in the Company Certificate of Incorporation, the Company By-laws, the organizational documents of any Subsidiary of the Company or any indemnification agreement, between a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company or any of its Subsidiaries and the Company (including in his or any of its Subsidiaries (in each case, her role as in effect on the date hereof) shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such director, officer, employee or agent.
(b) Without limiting Section 5.05(a) or any rights of any director or officer a fiduciary of the Company employee benefit plans of the Company, if applicable) (the "Indemnified Parties") is, or any of its Subsidiaries or any of their respective predecessors (eachis threatened to be, an “Indemnified Party”) pursuant to any indemnification agreement, from and after the Effective Time, in the event of any threatened or actual claim, action, suit, proceeding or investigation (made a “Claim”), whether civil, criminal or administrative, party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party he or she is or was a director (including in a capacity as a member of any board committee) director, officer or officer employee of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactionstransactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, TopCo shall indemnify the parties hereto agree to cooperate and hold harmless, as use their commercially reasonable efforts to defend against and respond thereto. It is understood and agreed that after the
(a) except to the fullest extent permitted such failure to notify materially prejudices Parent. Upon written request by Lawan Indemnified Party, each Parent shall advance all expenses incurred by such Indemnified Party against in connection with any lossessuch claim, claims, damages, liabilities, costs, expenses (including attorney’s fees and expenses in advance of the final disposition of any claimaction, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by applicable Law), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. TopCo shall not settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification would reasonably be expected to be sought by an Indemnified Party hereunder, unless (i) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification of such Indemnified Party from any and all liability arising out of such Claim; or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could seek is a party or is entitled to indemnification hereunderpursuant to this Section 5.05(a). TopCo’s The right to indemnification and the advancement of expenses conferred by this Section 5.05(a) shall not be exclusive of any other rights that any Indemnified Party seeking indemnification or advancement of expenses may be entitled to or hereafter acquire under any statute, agreement or provision of the Company's or the Surviving Corporation's certificate of incorporation or bylaws or otherwise. Parent's obligations under this Section 5.05(b5.05(a) shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any Claim claim (a "Claim") asserted or made within such period shall continue until the final disposition of such Claim.
(cb) The Company Without limiting the foregoing, Merger Subsidiary and Parent agree that (i) the certificate of incorporation and bylaws of the Surviving Corporation shall use commercially reasonable efforts contain the provisions with respect to obtainindemnification and limitation of liability set forth in the Company's certificate of incorporation and bylaws on the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of individuals who at or any time prior to the Effective TimeTime were directors or officers of the Company, prepaid and (or “tail”ii) directors’ all rights to indemnification and officers’ liability insurance policies in respect of exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time for six years from now existing in favor of the current or former directors or officers of the Company and the Subsidiaries as provided in any indemnification agreements of the Company shall be assumed by the Surviving Corporation in the Merger, without further action, as of the Effective Time, covering each Indemnified Party on terms with respect to such coverage Time and amounts no less favorable than those of such policies shall survive the Merger and shall continue in full force and effect on the date of this Agreement; provided, however, that, without the prior written consent of TopCo, the Company may not expend therefor in excess of 300% of the amount (the “Annual Amount”) paid by the Company for coverage for the most recently completed 12-month period prior to the date of this Agreement (such amount, equal to 300% of the annual amount, the “D&O Tail Premium Cap”)extent consistent with applicable law) in accordance with their terms. In the event that Parent or the Company does not obtain such “tail” insurance policies, then, for a period of six years from the Effective Time, TopCo shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that (i) TopCo may substitute therefor policies of a reputable and financially sound insurance company containing terms, including with respect to coverage and amounts, no less favorable to any Indemnified Party and (ii) in satisfying its obligation under this Section 5.05(c), TopCo shall not be obligated to pay for coverage for any 12-month period aggregate premiums for insurance in excess of the D&O Tail Premium Cap, it being understood and agreed that TopCo shall nevertheless be obligated to provide such coverage as may be obtained for the Annual Amount.
(d) In the event that TopCo Surviving Corporation or any of its their respective successors or assigns (iA) consolidates with or merges into any other person Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (iiB) transfers or conveys all or a substantial portion substantially all of its properties and other assets to any personPerson, then, and in each such case, proper provision shall will be made so that the applicable successors and assigns of Parent or transferees expressly the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 5.05.
(ec) For six (6) years after the Effective Time, the Surviving Corporation shall provide officers' and directors' liability insurance in respect of acts or omissions occurring prior to the Effective Time, including but not limited to the transactions contemplated by this Agreement, covering each person currently covered by the Company's officers' and directors' liability insurance policy, or who becomes covered by such policy prior to the Effective Time, on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date hereof, provided, however, that in satisfying its obligation under this Section 5.05 the Surviving Corporation shall not be obligated to pay annual premiums in excess of 200% of the amount per annum the Company is currently paying for such coverage (the "Insurance Amount"); provided further, that if the Insurance Amount is insufficient to maintain or procure the coverage contemplated by this Section 5.05(c), then the Surviving Corporation shall use commercially reasonable efforts to obtain as much comparable insurance as is available for the Insurance Amount.
(d) For six (6) years after the Effective Time, Parent shall cause the Surviving Corporation to honor its commitments and obligations pursuant to this Section 5.05. The provisions of this Section 5.05 are (i) intended to be for the benefit of, and will be enforceable by, each Indemnified Partyindemnified party, his or her heirs and his or her representatives, representatives and are (ii) in addition to, and not in substitution foror, any other rights to indemnification or contribution that any such person may have by Contract contract or otherwise. The obligations of TopCo under this Section 5.05 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.05.
Appears in 2 contracts
Samples: Merger Agreement (Merck & Co Inc), Merger Agreement (Merck & Co Inc)
Indemnification, Exculpation and Insurance. (a) All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any person who is the current or prior to the Effective Time becomes, former directors or has been at any time prior to the date of this Agreement, a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) officers of the Company, any of its Subsidiaries or any of their respective predecessors Company as provided in the Company Certificate its articles of Incorporation, the Company Byincorporation or by-laws, the laws (or comparable organizational documents of instruments and agreements) and any Subsidiary existing indemnification agreements or arrangements of the Company or any indemnification agreement, between a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company or any of its Subsidiaries and the Company or any of its Subsidiaries (in each case, as in effect on the date hereof) shall survive the Merger and shall continue in full force and effect in accordance with their terms, and shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect any right the rights thereunder of any such director, officer, employee individuals for acts or agentomissions occurring at or prior to the Effective Time.
(b) Without limiting Section 5.05(a) or any rights of any director or officer of the Company or any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) pursuant to any indemnification agreement, from and after the Effective Time, in In the event of any threatened or actual claim, action, suit, proceeding or investigation (a “Claim”)investigation, whether civil, criminal or administrative, based including, without limitation, any such claim, action, suit, proceeding or investigation in whole which any individual who is now or in part onhas 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 (the "Indemnified Parties"), is, or is threatened to be, made a party, or arising in whole or in part out of, of or pertaining to (i) the fact that the Indemnified Party he is or was a director (including in a capacity as a member of any board committee) director, officer or officer current employee of the Company, any of Company or its Subsidiaries or any of their respective predecessors predecessor or (ii) this Agreement or any of the Transactionstransactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, TopCo shall indemnify the parties hereto agree to cooperate and hold harmless, as use their reasonable best efforts to defend against and to the fullest extent permitted by Law, each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including attorney’s fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by applicable Law), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. TopCo shall not settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification would reasonably be expected to be sought by an Indemnified Party hereunder, unless (i) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification of such Indemnified Party from any and all liability arising out of such Claim; or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could seek indemnification hereunder. TopCo’s obligations under this Section 5.05(b) shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the final disposition of such Claimrespond thereto.
(c) The Company shall use commercially reasonable efforts to obtain, at or prior to From and after the Effective Time, prepaid (or “tail”) the Parent shall cause the Surviving Corporation to maintain in effect a directors’ and officers’ officer’s liability insurance policies in respect of policy covering acts or omissions occurring at or prior to the Effective Time for six years from after the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that, without the prior written consent of TopCo, the Company may not expend therefor in excess of 300% of the amount (the “Annual Amount”) paid by the Company for coverage for the most recently completed 12-month period prior to the date of this Agreement (such amount, equal to 300% of the annual amount, the “D&O Tail Premium Cap”). In the event the Company does not obtain such “tail” insurance policies, then, for a period of six years from the Effective Time, TopCo shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that (i) TopCo may substitute therefor policies of a reputable and financially sound insurance company containing terms, including with respect to coverage and amounts, no less favorable to any Indemnified Party and (ii) in satisfying its obligation under this Section 5.05(c), TopCo shall not be obligated to pay for coverage for any 12-month period aggregate premiums for insurance in excess of the D&O Tail Premium Cap, it being understood and agreed that TopCo shall nevertheless be obligated to provide such coverage as may be obtained for the Annual Amount.
(d) In Parent shall cause the event that TopCo Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of such consolidation or successor thereto, whether by consolidation, merger or (ii) transfers or conveys transfer of substantially all or a substantial portion of its properties and other assets or assets, to any person, then, and in each such case, proper provision shall be made so that the applicable successors and assigns or transferees expressly assume the comply with its obligations set forth in under this Section 5.05.
(e) 6.4. The provisions of this Section 5.05 6.6 shall survive the Effective Time and are intended to be for the benefit of, and will shall be enforceable by, each Indemnified Party, Party and other person named herein and his or her heirs and his or her representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract or otherwise. The obligations of TopCo under this Section 5.05 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.05.
Appears in 2 contracts
Samples: Merger Agreement (Snocone Systems Inc), Merger Agreement (Whos Your Daddy Inc)
Indemnification, Exculpation and Insurance. (a) All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any person who is or prior to the Effective Time becomes, or has been at any time prior to the date of this Agreement, a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company, any of its Subsidiaries or any of their respective predecessors as provided in the Company Certificate of Incorporation, the Company By-laws, the organizational documents of any Subsidiary of the Company or any indemnification agreement, between a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company or any of its Subsidiaries and the Company or any of its Subsidiaries (in each case, as in effect on the date hereof) shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such director, officer, employee or agent.
(b) Without limiting Section 5.05(a) or any rights of any director or officer of the Company or any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) pursuant to any indemnification agreement, from and after the Effective Time, in the event of any threatened or actual claim, action, suit, proceeding or investigation (a “Claim”), whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party is or was a director (including in a capacity as a member of any board committee) or officer of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Effective Time, TopCo 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 attorney’s fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by applicable Law), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. TopCo shall not settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification would reasonably be expected to be sought by an Indemnified Party hereunder, unless (i) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification of such Indemnified Party from any and all liability arising out of such Claim; or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could seek indemnification hereunder. TopCo’s obligations under this Section 5.05(b) shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the final disposition of such Claim.
(c) The Company shall use commercially reasonable efforts to obtain, at or prior to the Effective Time, prepaid (or “tail”) directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time for six years from the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that, without the prior written consent of TopCo, the Company may not expend therefor in excess of 300% of the amount (the “Annual Amount”) paid by the Company for coverage for the most recently completed 12-month 12‑month period prior to the date of this Agreement (such amount, equal to 300% of the annual amount, the “D&O Tail Premium Cap”). In the event the Company does not obtain such “tail” insurance policies, then, for a period of six years from the Effective Time, TopCo shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that (i) TopCo may substitute therefor policies of a reputable and financially sound insurance company containing terms, including with respect to coverage and amounts, no less favorable to any Indemnified Party and (ii) in satisfying its obligation under this Section 5.05(c), TopCo shall not be obligated to pay for coverage for any 12-month period aggregate premiums for insurance in excess of the D&O Tail Premium Cap, it being understood and agreed that TopCo shall nevertheless be obligated to provide such coverage as may be obtained for the Annual Amount.
(d) In the event that TopCo 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 a substantial portion of its properties and other assets to any person, then, and in each such case, proper provision shall be made so that the applicable successors and assigns or transferees expressly assume the obligations set forth in this Section 5.05.
(e) The provisions of this Section 5.05 are intended to be for the benefit of, and will be enforceable by, each Indemnified Party, his or her heirs and his or her representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract or otherwise. The obligations of TopCo under this Section 5.05 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.05.
Appears in 2 contracts
Samples: Merger Agreement (Energy Transfer Equity, L.P.), Merger Agreement (Energy Transfer Equity, L.P.)
Indemnification, Exculpation and Insurance. (a) All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any person who is or prior to the Effective Time becomes, or has been at any time prior to the date of this Agreement, a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company, any of its Subsidiaries or any of their respective predecessors as provided in the Company Certificate of Incorporation, the Company By-lawsBylaws, the organizational documents of any Subsidiary of the Company or any indemnification agreementagreement set forth in Section 5.05(a) of the Company Disclosure Letter, between a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company or any of its Subsidiaries and the Company or any of its Subsidiaries (in each case, as in effect on the date hereof) shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such director, officer, employee or agent.
(b) Without limiting Section 5.05(a) or any rights of any director or officer of the Company or any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) pursuant to any indemnification agreement, from and after the Effective Time, in the event of any threatened or actual claim, action, suit, proceeding or investigation (a “Claim”), whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party is or was a director (including in a capacity as a member of any board committee) or officer of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Effective Time, TopCo shall Parent and the Surviving Corporation shall, jointly and severally, 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 's fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by applicable Law), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. TopCo None of Parent or the Surviving Corporation shall not settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification would reasonably be expected to be sought by an Indemnified Party hereunder, unless (i) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification of such Indemnified Party from any and all liability arising out of such Claim; Claim or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo Parent and the Surviving Corporation shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could seek indemnification hereunder. TopCo’s Parent's and the Surviving Corporation's obligations under this Section 5.05(b) shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the final disposition of such Claim.
(c) The Company may (or, at the request of Parent, shall use commercially reasonable efforts to to) obtain, at or prior to the Effective Time, prepaid (or “tail”) directors’ ' and officers’ ' liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time for six years from the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that, without the prior written consent of TopCoParent, the Company may not expend therefor in excess of 300250% of the amount (the “Annual Amount”) paid by the Company for coverage for the most recently completed 12-month period prior to the date of this Agreement (such amount, equal to 300250% of the annual amount, the “D&O Tail Premium Cap”). In the event the Company does not obtain such “tail” insurance policies, then, for a period of six years from the Effective Time, TopCo Parent shall maintain in effect the Company’s 's current directors’ ' and officers’ ' liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that (i) TopCo Parent may substitute therefor policies of a reputable and financially sound insurance company containing terms, including with respect to coverage and amounts, no less favorable to any Indemnified Party and (ii) Party; provided further, however, that in satisfying its their obligation under this Section 5.05(c), TopCo Parent shall not be obligated to pay for coverage for any 12-month period aggregate premiums for insurance in excess of the D&O Tail Premium Cap, it being understood and agreed that TopCo Parent shall nevertheless be obligated to provide such coverage as may be obtained for the Annual Amount.
(d) In the event that TopCo Parent or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a substantial portion of its properties and other assets to any person, or if Parent dissolves the Surviving Corporation, then, and in each such case, Parent shall cause proper provision shall to be made so that the applicable successors and assigns or transferees expressly assume the obligations set forth in this Section 5.05.
(e) The provisions of this Section 5.05 are intended to be for the benefit of, and will be enforceable by, each Indemnified Party, his or her heirs and his or her representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract contract or otherwise. The obligations of TopCo the Parent and the Surviving Corporation under this Section 5.05 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.05.
Appears in 2 contracts
Samples: Merger Agreement (Fidelity National Financial, Inc.), Merger Agreement (Fidelity National Financial, Inc.)
Indemnification, Exculpation and Insurance. (a) All rights From and after the Effective Time, Parent 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, officer or employee 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) 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, other than an action by or in the right of the Company), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee was a director, officer or employee of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, agent, trustee or fiduciary 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, or agent of another corporation, partnership, joint venture, limited liability company, trust or other enterprise (including any employee benefit plans)), 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 by Law and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time as provided in the Company’s certificate of incorporation and rights bylaws and the organizational documents of such Subsidiaries as currently in effect. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause the certificate of incorporation and bylaws of the Surviving Corporation to advancement of expenses relating thereto now existing in favor of any person who is or prior contain provisions no less favorable to the Effective Time becomes, or has been at any time prior Indemnitees with respect to limitation of liabilities of directors and officers and indemnification than are set forth as of the date of this Agreement, a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of Agreement in the Company’s certificate of incorporation and bylaws, any of its Subsidiaries or any of their respective predecessors as provided in the Company Certificate of Incorporation, the Company By-laws, the organizational documents of any Subsidiary of the Company or any indemnification agreement, between a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company or any of its Subsidiaries and the Company or any of its Subsidiaries (in each case, as in effect on the date hereof) shall survive the Merger and which provisions shall not be amended, repealed or otherwise modified in any a manner that would adversely affect any right the rights thereunder of any such director, officer, employee or agent.
(b) Without limiting Section 5.05(a) or any rights of any director or officer of the Company or any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) pursuant to any indemnification agreementIndemnitees. In addition, from and after the Effective Time, in Parent shall, and shall cause the event Company and the Surviving Corporation to, pay any expenses (including fees and expenses of legal counsel) of any threatened or actual claim, action, suit, proceeding or investigation (a “Claim”), whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party is or was a director Indemnitee under this Section 6.7 (including in a capacity as a member of connection with enforcing the indemnity and other obligations referred to in this Section 6.7) reasonably incurred by such Indemnitee in connection with investigating or defending any board committee) or officer of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Effective Time, TopCo shall indemnify and hold harmless, as and such to the fullest extent permitted by under applicable Law, each provided that the person to whom expenses are advanced provides an undertaking to repay such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including attorney’s fees advances if it is ultimately determined in a final and expenses in advance non-appealable judgment of the final disposition a court of any claim, suit, proceeding or investigation competent jurisdiction that such Indemnitee is not entitled to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by be indemnified under applicable Law), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. TopCo shall not settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification would reasonably be expected to be sought by an Indemnified Party hereunder, unless (i) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification of such Indemnified Party from any and all liability arising out of such Claim; or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could seek indemnification hereunder. TopCo’s obligations under this Section 5.05(b) shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights the Surviving Corporation will not be liable for any settlement effected without the Surviving Corporation’s prior written consent (which consent shall not be unreasonably withheld or delayed).
(b) An Indemnitee shall have the right, but not the obligation, to indemnification assume and control the defense of any litigation, claim or proceeding relating to any acts or omissions covered under this Section 6.7 (each, a “Claim”) with counsel selected by the Indemnitee, which shall be reasonably acceptable to Parent; provided, however, that Parent shall be permitted to participate in respect the defense of such Claim at its own expense. Each of Parent, the Company, the Surviving Corporation and the Indemnitees shall cooperate in the defense of any Claim asserted and shall provide access to properties (including the Real Property) and individuals as reasonably requested and furnish or made within cause to be furnished records, information and testimony, and attend such period shall continue until the final disposition of such Claimconferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(c) The Company shall use commercially reasonable efforts to obtain, For the six (6)-year period commencing at or prior to the Effective Time, prepaid (or “tail”) directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time for six years from the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that, without the prior written consent of TopCo, the Company may not expend therefor in excess of 300% of the amount (the “Annual Amount”) paid by the Company for coverage for the most recently completed 12-month period prior to the date of this Agreement (such amount, equal to 300% of the annual amount, the “D&O Tail Premium Cap”). In the event the Company does not obtain such “tail” insurance policies, then, for a period of six years from the Effective Time, TopCo Parent shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of covering acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party Time with respect to 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 coverage, and amounts no in amount, not less favorable to such individuals than those of such policies policy in effect on the date of this Agreement; provided, however, hereof (provided that Parent or the Surviving Corporation may (i) TopCo may substitute therefor policies policies, issued by reputable insurers, of a reputable and financially sound insurance company containing terms, including at least the same coverage with respect to matters occurring prior to the Effective Time, or (ii) obtain as of the Effective Time “tail” insurance policies with a claims period of six (6) years from the Effective Time with at least the same coverage with respect to matters occurring 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, cancelled, cannot be obtained at all, or can only be obtained at an annual premium in excess of the Maximum Premium, the Surviving Corporation will maintain such insurance as can be obtained for the remainder of the six-year period for a premium not in excess of the Maximum Premium. True and amountscomplete copies of current and effective directors’ and officers’ liability insurance policies have been provided to Parent.
(d) The provisions of this Section 6.7 are (i) intended to be for the benefit of, no less favorable to any Indemnified Party and shall be enforceable by, each Indemnitee, his or her heirs and his or her representatives and (ii) in satisfying its obligation addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. The obligations of Parent and the Surviving Corporation under this Section 5.05(c), TopCo 6.7 shall not be obligated terminated or modified in such a manner as to pay for coverage for adversely affect the rights of any 12-month period aggregate premiums for insurance Indemnitee to whom this Section 6.7 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in excess of the D&O Tail Premium Cap, writing to such termination or modification (it being understood and expressly agreed that TopCo the Indemnitees to whom this Section 6.7 applies shall nevertheless be obligated to provide such coverage as may be obtained for the Annual Amountthird party beneficiaries of this Section 6.7).
(de) In the event that TopCo Parent, the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a substantial portion substantially all of its properties and other assets to any personPerson, then, and in each such case, proper provision shall be made so that the applicable successors and assigns of Parent and the Surviving Corporation or transferees the transferee of such properties and assets shall expressly assume and be responsible for all of the obligations thereof set forth in this Section 5.056.7.
(e) The provisions of this Section 5.05 are intended to be for the benefit of, and will be enforceable by, each Indemnified Party, his or her heirs and his or her representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract or otherwise. The obligations of TopCo under this Section 5.05 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.05.
Appears in 1 contract
Samples: Merger Agreement (Aleris Corp)
Indemnification, Exculpation and Insurance. (a) All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any person who is or prior to the Effective Time becomes, or has been at any time prior to the date of this Agreement, a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company, any of its Subsidiaries or any of their respective predecessors as provided in the Company Certificate of Incorporation, the Company By-lawsBylaws, the organizational documents of any Subsidiary of the Company or any indemnification agreementagreement set forth in Section 5.05(a) of the Company Disclosure Letter, between a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company or any of its Subsidiaries and the Company or any of its Subsidiaries (in each case, as in effect on the date hereof) shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such director, officer, employee or agent.
(b) Without limiting Section 5.05(a) or any rights of any director or officer of the Company or any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) pursuant to any indemnification agreement, from and after the Effective Time, in the event of any threatened or actual claim, action, suit, proceeding or investigation (a “Claim”), whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party is or was a director (including in a capacity as a member of any board committee) or officer of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Effective Time, TopCo shall Parent and the Surviving Corporation shall, jointly and severally, 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 final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by applicable Law), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. TopCo None of Parent or the Surviving Corporation shall not settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification would reasonably be expected to be sought by an Indemnified Party hereunder, unless (i) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification of such Indemnified Party from any and all liability arising out of such Claim; Claim or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo Parent and the Surviving Corporation shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could seek indemnification hereunder. TopCoParent’s and the Surviving Corporation’s obligations under this Section 5.05(b) shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the final disposition of such Claim.
(c) The Company may (or, at the request of Parent, shall use commercially reasonable efforts to to) obtain, at or prior to the Effective Time, prepaid (or “tail”) directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time for six years from the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that, without the prior written consent of TopCoParent, the Company may not expend therefor in excess of 300250% of the amount (the “Annual Amount”) paid by the Company for coverage for the most recently completed 12-month period prior to the date of this Agreement (such amount, equal to 300250% of the annual amount, the “D&O Tail Premium Cap”). In the event the Company does not obtain such “tail” insurance policies, then, for a period of six years from the Effective Time, TopCo Parent shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that (i) TopCo Parent may substitute therefor policies of a reputable and financially sound insurance company containing terms, including with respect to coverage and amounts, no less favorable to any Indemnified Party and (ii) Party; provided further, however, that in satisfying its their obligation under this Section 5.05(c), TopCo Parent shall not be obligated to pay for coverage for any 12-month period aggregate premiums for insurance in excess of the D&O Tail Premium Cap, it being understood and agreed that TopCo Parent shall nevertheless be obligated to provide such coverage as may be obtained for the Annual Amount.
(d) In the event that TopCo Parent or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a substantial portion of its properties and other assets to any person, or if Parent dissolves the Surviving Corporation, then, and in each such case, Parent shall cause proper provision shall to be made so that the applicable successors and assigns or transferees expressly assume the obligations set forth in this Section 5.05.
(e) The provisions of this Section 5.05 are intended to be for the benefit of, and will be enforceable by, each Indemnified Party, his or her heirs and his or her representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract contract or otherwise. The obligations of TopCo the Parent and the Surviving Corporation under this Section 5.05 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.05.
Appears in 1 contract
Samples: Merger Agreement (Lender Processing Services, Inc.)
Indemnification, Exculpation and Insurance. (a) All rights From and after the Initial Holdco Merger Effective Time, MVW shall indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to indemnification the Initial Holdco Merger Effective Time, a current or former director or officer of ILG or any of its subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Initial Holdco Merger Effective Time, serving at the request of ILG, as applicable, or any of its subsidiaries as a current or former director or officer of another person (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and exculpation from liabilities for acts reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit or omissions proceeding, whether civil, criminal, administrative or investigative (including with respect to matters existing or occurring at or prior to the Initial Holdco Merger Effective Time and rights to advancement of expenses relating thereto now existing in favor of any person who is or prior to the Effective Time becomes, or has been at any time prior to the date of this Agreement, a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company, any of its Subsidiaries or any of their respective predecessors as provided in the Company Certificate of Incorporation, the Company By-laws, the organizational documents of any Subsidiary of the Company or any indemnification agreement, between a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company or any of its Subsidiaries this Agreement and the Company or any of its Subsidiaries (in each case, as in effect on the date hereof) shall survive the Merger transactions and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such director, officer, employee or agent.
(b) Without limiting Section 5.05(a) or any rights of any director or officer of the Company or any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) pursuant to any indemnification agreement, from and after the Effective Time, in the event of any threatened or actual claim, action, suit, proceeding or investigation (a “Claim”actions contemplated hereby)), whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, of or pertaining to (i) the fact that the Indemnified Party is or was an officer or director of ILG or any of its subsidiaries or is or was serving at the request of ILG or any of its subsidiaries as a director (including in a capacity as a member of any board committee) or officer of another person or in respect of any acts or omissions in their capacities as such directors or officers occurring prior to the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the TransactionsInitial Holdco Merger Effective Time, whether in any case asserted or arising before claimed prior to, at or after the Initial Holdco Merger Effective Time, TopCo shall indemnify and hold harmlessto the same extent as such Indemnified Parties are indemnified as of the date of this Agreement by ILG pursuant to the ILG Charter, the ILG Bylaws or the comparable organizational documents of any subsidiary of ILG, as applicable, and to the fullest extent permitted by Law, each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including attorney’s fees indemnification agreements with directors and expenses officers of ILG in advance existence as of the final disposition date of this Agreement. In the event of any such claim, suitaction, proceeding suit or investigation to proceeding, (i) each Indemnified Party will be entitled to the fullest extent permitted by Law upon receipt advancement of any undertaking required by applicable Law), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. TopCo shall not settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification would reasonably be expected to be sought by an Indemnified Party hereunder, unless (i) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification of such Indemnified Party from any and all liability arising out of such Claim; or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo shall cooperate with an Indemnified Party expenses incurred in the defense of any matter for which such claim, action, suit or proceeding from MVW to the same extent as such Indemnified Party could seek indemnification hereunder. TopCo’s obligations under Parties are entitled to advancement of expenses as of the date of this Section 5.05(b) shall continue in full force and effect for a period of six years from Agreement by ILG pursuant to the Effective Time; providedILG Charter, however, that all rights to indemnification in respect the ILG Bylaws or the comparable organizational documents of any Claim asserted or made within such period shall continue until the final disposition subsidiary of such Claim.
(c) The Company shall use commercially reasonable efforts to obtainILG, at or prior to the Effective Timeas applicable, prepaid (or “tail”) directors’ and officers’ liability insurance policies any indemnification agreements with directors and officers of ILG in respect existence as of acts or omissions occurring at or prior to the Effective Time for six years from the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; providedprovided that any person to whom expenses are advanced provides an undertaking, however, that, without if and only to the prior written consent of TopCoextent required by Applicable Law, the Company may not expend therefor ILG Charter or the ILG Bylaws or the comparable organizational documents of any ILG subsidiary, as applicable, and any indemnification agreements with directors and officers of ILG in excess existence as of 300% of the amount (the “Annual Amount”) paid by the Company for coverage for the most recently completed 12-month period prior to the date of this Agreement (such amount, equal to 300% of the annual amount, the “D&O Tail Premium Cap”). In the event the Company does not obtain such “tail” insurance policies, then, for a period of six years from the Effective Time, TopCo shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, to repay such advances if it is ultimately determined that (i) TopCo may substitute therefor policies of a reputable and financially sound insurance company containing terms, including with respect such person is not entitled to coverage and amounts, no less favorable to any Indemnified Party indemnification and (ii) MVW shall, and shall cause its subsidiaries to, cooperate in satisfying its obligation under this Section 5.05(c), TopCo shall not be obligated to pay for coverage for the defense of any 12-month period aggregate premiums for insurance in excess of the D&O Tail Premium Cap, it being understood and agreed that TopCo shall nevertheless be obligated to provide such coverage as may be obtained for the Annual Amount.
(d) matter. In the event that TopCo MVW 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 a substantial portion substantially all of its properties and other assets to any person, then, and in each such case, MVW shall cause proper provision shall to be made so that the applicable successors and assigns or transferees expressly of MVW assume the obligations set forth in this Section 5.055.4.
(eb) For a period of six years from and after the Closing Date, MVW shall either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by ILG and its subsidiaries or provide substitute polices for 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 Initial Holdco Merger Effective Time, except that in no event shall MVW be required to pay with respect to such insurance policies (or substitute insurance policies) of ILG in respect of any one policy year more than 300% of the annual premium payable by ILG for such insurance for the year ending December 31, 2017 (the “Annual D&O Cap”), and if MVW is unable to obtain the insurance required by this Section 5.4 for any year within such six-year period, it shall obtain as much comparable insurance as possible for such year for an annual premium equal to the Annual D&O Cap; provided that in lieu of the foregoing, ILG may obtain at or prior to the Initial Holdco Merger Effective Time a six-year “tail” policy under ILG’s existing directors and officers insurance policy providing equivalent coverage to that described in the preceding sentence if and to the extent that the same may be obtained for an amount that is not in excess of the maximum aggregate amount otherwise payable for such six-year period under this Section 5.4(b).
(c) The provisions of this Section 5.05 5.4 (i) shall survive consummation of the Combination Transactions, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Indemnified PartyParties), 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 contract or otherwise. The obligations of TopCo under this Section 5.05 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.05.
Appears in 1 contract
Samples: Merger Agreement (ILG, Inc.)
Indemnification, Exculpation and Insurance. (a) All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of the current or former directors or officers of the Company and its Subsidiaries as provided in their respective certificates of incorporation or bylaws (or comparable organizational documents) and any person who is existing indemnification agreements or arrangements of the Company and its Subsidiaries shall survive the Merger and shall continue in full force and effect in accordance with their terms, and shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of such individuals for acts or omissions occurring at or prior to the Effective Time becomesTime.
(b) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including any such claim, action suit, proceeding or investigation in which any individual who is now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company, any of its Subsidiaries or any of their respective predecessors as provided in the Company Certificate of Incorporation, the Company By-laws, the organizational documents of any Subsidiary of the Company or any indemnification agreement, between a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company or any of its Subsidiaries and the Company or any of its Subsidiaries (in each case, as in effect on the date hereof) shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such director, officer, employee or agent.
(b) Without limiting Section 5.05(a) or any rights of any director or officer of the Company or any of its Subsidiaries or any of their respective predecessors (each, an the “Indemnified Party”) pursuant to any indemnification agreement, from and after the Effective Time, in the event of any threatened or actual claim, action, suit, proceeding or investigation (a “ClaimParties”), whether civilis, criminal or administrativeis 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 fact that the Indemnified Party he is or was a director (including in a capacity as a member of any board committee) director, officer or officer employee of the Company, Company or any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactionstransactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, TopCo shall indemnify the parties hereto agree to cooperate and hold harmless, as use their best efforts to defend against and to the fullest extent permitted by Law, each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including attorney’s fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by applicable Law), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. TopCo shall not settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification would reasonably be expected to be sought by an Indemnified Party hereunder, unless (i) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification of such Indemnified Party from any and all liability arising out of such Claim; or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could seek indemnification hereunder. TopCo’s obligations under this Section 5.05(b) shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the final disposition of such Claimrespond thereto.
(c) The Company shall use commercially reasonable efforts to obtain, at or prior to For six years after the Effective Time, prepaid (or “tail”) directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time for six years from the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that, without the prior written consent of TopCo, the Company may not expend therefor in excess of 300% of the amount (the “Annual Amount”) paid by the Company for coverage for the most recently completed 12-month period prior to the date of this Agreement (such amount, equal to 300% of the annual amount, the “D&O Tail Premium Cap”). In the event the Company does not obtain such “tail” insurance policies, then, for a period of six years from the Effective Time, TopCo Surviving Corporation shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of covering acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party Time with respect to those Persons who are currently covered by the Company’s directors’ and officers’ liability insurance policy on terms with respect to such coverage and amounts amount no less favorable to the Company’s directors and officers currently covered by such insurance than those of such policies policy in effect on the date of this Agreementhereof; provided, however, that (i) TopCo the Surviving Corporation may substitute therefor policies of a reputable and financially sound insurance company Parent or its Subsidiaries (including self insurance) containing terms, including terms with respect to coverage and amounts, amount no less favorable to any Indemnified Party and (ii) such directors or officers; provided, further, that in satisfying its obligation under this Section 5.05(c), TopCo no event shall not the Surviving Corporation be obligated required to pay for coverage for any 12-month period aggregate premiums for insurance under this Section 5.5(c) in excess of 200% of the D&O Tail Premium Capaggregate premiums paid by the Company in 2004 on an annualized basis for such purpose and, it being understood and agreed that TopCo if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall nevertheless be obligated to provide use its reasonable best efforts to obtain a policy with the greatest coverage available for a cost not exceeding such coverage as may be obtained for the Annual Amountamount.
(d) In the event that TopCo 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 a substantial portion of its properties and other assets to any person, then, and in each such case, proper provision shall be made so that the applicable successors and assigns or transferees expressly assume the obligations set forth in this Section 5.05.
(e) The provisions of this Section 5.05 5.5 shall survive the Effective Time and are intended to be for the benefit of, and will shall be enforceable by, each Indemnified Party, Party and other Person named herein and his or her heirs and his or her representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract or otherwise. The obligations of TopCo under this Section 5.05 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.05.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of the current or former directors or officers of the Company and its Subsidiaries as provided in their respective certificates of incorporation or bylaws (or comparable organizational documents) and any person who is existing indemnification agreements or arrangements of the Company and its Subsidiaries shall survive the Merger and shall continue in full force and effect in accordance with their terms, and shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of such individuals for acts or omissions occurring at or prior to the Effective Time becomesTime.
(b) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including any such claim, action suit, proceeding or investigation in which any individual who is now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company, any of its Subsidiaries or any of their respective predecessors as provided in the Company Certificate of Incorporation, the Company By-laws, the organizational documents of any Subsidiary of the Company or any indemnification agreement, between a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company or any of its Subsidiaries and the Company or any of its Subsidiaries (in each case, as in effect on the date hereof) shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such director, officer, employee or agent.
(b) Without limiting Section 5.05(a) or any rights of any director or officer of the Company or any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) pursuant to any indemnification agreement, from and after the Effective Time, in the event of any threatened or actual claim, action, suit, proceeding or investigation (a “Claim”"INDEMNIFIED PARTIES"), whether civilis, criminal or administrativeis 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 fact that the Indemnified Party he is or was a director (including in a capacity as a member of any board committee) director, officer or officer employee of the Company, Company or any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactionstransactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, TopCo shall indemnify the parties hereto agree to cooperate and hold harmless, as use their best efforts to defend against and to the fullest extent permitted by Law, each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including attorney’s fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by applicable Law), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. TopCo shall not settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification would reasonably be expected to be sought by an Indemnified Party hereunder, unless (i) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification of such Indemnified Party from any and all liability arising out of such Claim; or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could seek indemnification hereunder. TopCo’s obligations under this Section 5.05(b) shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the final disposition of such Claimrespond thereto.
(c) The Company shall use commercially reasonable efforts to obtain, at or prior to For six years after the Effective Time, prepaid (or “tail”) the Surviving Corporation shall maintain in effect the Company's current directors’ ' and officers’ ' liability insurance policies in respect of covering acts or omissions occurring at or prior to the Effective Time for six years from with respect to those Persons who are currently covered by the Effective Time, covering each Indemnified Party Company's directors' and officers' liability insurance policy on terms with respect to such coverage and amounts amount no less favorable to the Company's directors and officers currently covered by such insurance than those of such policies policy in effect on the date of this Agreementhereof; provided, however, that, without that the prior written consent of TopCo, the Company may not expend therefor in excess of 300% of the amount (the “Annual Amount”) paid by the Company for coverage for the most recently completed 12-month period prior to the date of this Agreement (such amount, equal to 300% of the annual amount, the “D&O Tail Premium Cap”). In the event the Company does not obtain such “tail” insurance policies, then, for a period of six years from the Effective Time, TopCo shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that (i) TopCo Surviving Corporation may substitute therefor policies of a reputable and financially sound insurance company Parent or its Subsidiaries (including self insurance) containing terms, including terms with respect to coverage and amounts, amount no less favorable to any Indemnified Party and (ii) such directors or officers; provided, further, that in satisfying its obligation under this Section 5.05(c), TopCo no event shall not the Surviving Corporation be obligated required to pay for coverage for any 12-month period aggregate premiums for insurance under this Section 5.5(c) in excess of 200% of the D&O Tail Premium Capaggregate premiums paid by the Company in 2004 on an annualized basis for such purpose and, it being understood and agreed that TopCo if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall nevertheless be obligated to provide use its reasonable best efforts to obtain a policy with the greatest coverage available for a cost not exceeding such coverage as may be obtained for the Annual Amountamount.
(d) In the event that TopCo 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 a substantial portion of its properties and other assets to any person, then, and in each such case, proper provision shall be made so that the applicable successors and assigns or transferees expressly assume the obligations set forth in this Section 5.05.
(e) The provisions of this Section 5.05 5.5 shall survive the Effective Time and are intended to be for the benefit of, and will shall be enforceable by, each Indemnified Party, Party and other Person named herein and his or her heirs and his or her representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract or otherwise. The obligations of TopCo under this Section 5.05 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.05.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) All rights to indemnification From and exculpation from liabilities for acts or omissions occurring at or prior to a period of six years after the First Effective Time Time, Parent will indemnify and rights to advancement of expenses relating thereto now existing in favor of any person hold harmless each individual who is or prior to the Effective Time becomes, or has been at any time prior to as of the date of this Agreement, or who becomes prior to the First Effective Time, a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company, any of its Subsidiaries or any of their respective predecessors as provided in the Company Certificate of Incorporation, the Company By-laws, the organizational documents of any Subsidiary of the Company or any indemnification agreement, between a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company or any of its Subsidiaries and the Company or any of its Subsidiaries (in each case, as in effect on the date hereof) shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such director, officer, employee or agent.
(b) Without limiting Section 5.05(a) or any rights of any director or officer of the Company or any of its Subsidiaries or any who is as of their respective predecessors (eachthe date of this Agreement, an “Indemnified Party”) pursuant or who thereafter commences prior to any indemnification agreement, from and after the First Effective Time, in serving at the event request of the Company, as applicable, or any threatened of its Subsidiaries as a director or actual claim, action, suit, proceeding or investigation officer of another Person (a the “ClaimIndemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any claim or Action, whether civil, criminal criminal, administrative or administrativeinvestigative (including with respect to matters existing or occurring at or prior to the First Effective Time (including this Agreement and the transactions and actions contemplated hereby)), based in whole or in part on, or arising in whole or in part out of, of or pertaining to (i) the fact that the Indemnified Party is or was a an officer or director (including in a capacity as a member of any board committee) or officer of the Company, Company or any of its Subsidiaries or any is or was serving at the request of their respective predecessors or (ii) this Agreement the Company or any of its Subsidiaries as a director or officer of another Person or in respect of any acts or omissions in their capacities as such directors or officers occurring prior to the TransactionsFirst Effective Time, whether in any case asserted or arising before claimed prior to, at or after the First Effective Time, TopCo shall indemnify and hold harmless, as Time to the fullest extent permissible under applicable Law and to the fullest extent permitted by Law, each as such Indemnified Parties are indemnified as of the date of this Agreement by the Company pursuant to the Company Charter, the Company Bylaws or the governing organizational documents of any Subsidiary of the Company, as applicable, and any indemnification Contracts with directors and officers of the Company in existence as of the date of this Agreement and listed in Section 5.4(a) of the Company Disclosure Letter. In the event of any such claim or Action, (i) each Indemnified Party against any losses, claims, damages, liabilities, costs, will be entitled to advancement of expenses (including attorney’s fees and expenses fees) incurred in advance of the final disposition defense of any claim, suit, proceeding such claim or investigation to each Indemnified Party Action from Parent to the fullest extent permitted permissible under applicable Law and to the fullest extent as such Indemnified Parties are entitled to advance of such expenses as of the date of this Agreement by Law upon receipt the Company pursuant to the Company Charter, the Company Bylaws or the governing or organizational documents of any undertaking Subsidiary of the Company, as applicable, and any indemnification Contracts with directors and officers of the Company in existence as of the date of this Agreement and listed in Section 5.4(a) of the Company Disclosure Letter, provided that any Person to whom expenses are advanced provides an undertaking, if and to the extent required by applicable Law), judgmentsthe Company Charter or the Company Bylaws or the governing or organizational documents of any the Company Subsidiary, fines as applicable, and amounts paid any indemnification Contracts with directors and officers of the Company in settlement existence as of or the date of this Agreement and listed in connection with Section 5.4(a) of the Company Disclosure Letter, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, and (ii) Parent will, and will cause its Subsidiaries to, cooperate in the defense of any such threatened matter. Notwithstanding anything to the contrary in this Section 5.4(a) or actual Claim. TopCo shall elsewhere in this Agreement, Parent and Ultimate Surviving Corporation will not settle, settle or compromise or consent to the entry of any judgment in or otherwise seek termination with respect to any threatened claim or actual Claim Action for which indemnification would reasonably be expected to be has been sought by an Indemnified Party hereunder, under this Section 5.4(a) unless (i) such settlement, compromise compromise, consent or consent termination includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification claim or Action and does not include any admission of such Indemnified Party from any and all liability arising out of such Claim; or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could seek indemnification hereunder. TopCo’s obligations under this Section 5.05(b) shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the final disposition of such Claim.
(c) The Company shall use commercially reasonable efforts to obtain, at or prior to the Effective Time, prepaid (or “tail”) directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time for six years from the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that, without the prior written consent of TopCo, the Company may not expend therefor in excess of 300% of the amount (the “Annual Amount”) paid by the Company for coverage for the most recently completed 12-month period prior to the date of this Agreement (such amount, equal to 300% of the annual amount, the “D&O Tail Premium Cap”)Indemnified Party. In the event that Parent, the Company does not obtain such “tail” insurance policiesFirst Surviving Corporation, then, for a period of six years from the Effective Time, TopCo shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that (i) TopCo may substitute therefor policies of a reputable and financially sound insurance company containing terms, including with respect to coverage and amounts, no less favorable to any Indemnified Party and (ii) in satisfying its obligation under this Section 5.05(c), TopCo shall not be obligated to pay for coverage for any 12-month period aggregate premiums for insurance in excess of the D&O Tail Premium Cap, it being understood and agreed that TopCo shall nevertheless be obligated to provide such coverage as may be obtained for the Annual Amount.
(d) In the event that TopCo Ultimate Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a substantial portion substantially all of its properties and other assets to any personPerson, then, and in each such case, proper provision shall be made so Parent, the First Surviving Corporation or Ultimate Surviving Corporation, as applicable, will provide that the applicable successors and assigns of Parent, the First Surviving Corporation or transferees expressly Ultimate Surviving Corporation, as applicable, assume the obligations set forth in this Section 5.055.4.
(eb) For a period of six years from and after the Closing Date, Parent will either, at its election (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 polices for not less than the existing coverage provided by the directors’ and officers’ liability insurance and fiduciary liability insurance maintained by Parent in favor of the directors and officers of Parent with respect to claims arising from, relating to, or otherwise in respect of facts or events that occurred on or before the First Effective Time, except, in each case, that in no event will Parent be required to pay with respect to such insurance policies (or substitute insurance policies) more than 275% of the annual premium payable by the Company for such insurance for the year ending December 31, 2015 (the “Annual D&O Cap”), and if Parent is unable to obtain the insurance required by this Section 5.4(b) for any year within such six-year period, it will obtain the most advantageous insurance obtainable for such year for an annual premium not to exceed the Annual D&O Cap; provided, however, that in lieu of the foregoing, the Company may obtain at or prior to the First Effective Time a six-year “tail” prepaid policy under the Company’s existing directors and officers liability insurance policy providing substantially equivalent coverage to that described in the preceding sentence. If such “tail” prepaid policy has been obtained by the Company prior to the First Effective Time, Parent will cause such policy to be maintained in full force and effect, for its full term, and cause the Ultimate Surviving Corporation to honor all obligations thereunder.
(c) Any Indemnified Party wishing to claim indemnification under Section 5.4(a), upon learning of any such claim or Action, will promptly notify Parent thereof, but the failure to so notify will not relieve Parent or the Ultimate Surviving Corporation of any liability it may have to such Indemnified Party except to the extent such failure prejudices the indemnifying party. In the event of any such claim or Action (whether arising before, at or after the First Effective Time): (i) Parent or the Ultimate Surviving Corporation will have the right to assume the defense thereof and Parent and the Ultimate Surviving Corporation will not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Parent or the Ultimate Surviving Corporation elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Parent or the Ultimate Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and Parent or the Ultimate Surviving Corporation will pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that Parent and the Ultimate Surviving Corporation will be obligated pursuant to this Section 5.4(c) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest; provided, that the fewest number of counsels necessary to avoid conflicts of interest will be used; (ii) the Indemnified Parties will cooperate in the defense of any such matter; and (iii) Parent and the Ultimate Surviving Corporation will not be liable for any settlement effected without their prior written consent; provided, further, that Parent and the Ultimate Surviving Corporation will not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction ultimately determines, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law.
(d) The provisions of this Section 5.05 5.4 (i) will survive consummation of the Mergers, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Indemnified PartyParties), his or her heirs and his or her representativesRepresentatives, 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. The obligations of TopCo under this Section 5.05 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.05.
Appears in 1 contract
Samples: Merger Agreement (Jarden Corp)
Indemnification, Exculpation and Insurance. (a) All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any person who is or prior to the Effective Time becomes, or has been at any time prior to the date of this Agreement, a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company, any of its Subsidiaries or any of their respective predecessors as provided in the Company Certificate of Incorporation, the Company By-lawsBylaws, the organizational documents of any Subsidiary of the Company or any indemnification agreementagreement set forth in Section 5.05(a) of the Company Disclosure Letter, between a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company or any of its Subsidiaries and the Company or any of its Subsidiaries (in each case, as in effect on the date hereof) shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such director, officer, employee or agent.
(b) Without limiting Section 5.05(a) or any rights of any director or officer of the Company or any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) pursuant to any indemnification agreement, from and after the Effective Time, in the event of any threatened or actual claim, action, suit, proceeding or investigation (a “Claim”), whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party is or was a director (including in a capacity as a member of any board committee) or officer of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Effective Time, TopCo Parent shall cause the Surviving Corporation or the applicable Subsidiary to 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 final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by applicable Law), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. TopCo None of Parent or the Surviving Corporation shall not settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification would reasonably be expected to be sought by an Indemnified Party hereunder, unless (i) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification of such Indemnified Party from any and all liability arising out of such Claim; Claim or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo Parent and the Surviving Corporation shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could seek indemnification hereunder. TopCoParent’s and the Surviving Corporation’s obligations under this Section 5.05(b) shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the final disposition of such Claim.
(c) The Company may (or, at the request of Parent, shall use commercially reasonable efforts to to) obtain, at or prior to the Effective Time, prepaid (or “tail”) directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time for six years from the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that, without the prior written consent of TopCoParent, the Company may not expend therefor in excess of 300% of the annual amount (the “Annual Amount”) paid by the Company for coverage for the most recently completed 12-month period prior to as of the date of this Agreement (such amount, equal to 300% of the annual amount, the “D&O Tail Premium Cap”). In the event the Company does not obtain such “tail” insurance policies, then, for a period of six years from the Effective Time, TopCo Parent shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that (i) TopCo Parent may substitute therefor policies of a reputable and financially sound insurance company containing terms, including with respect to coverage and amounts, no less favorable to any Indemnified Party and (ii) Party; provided, further, however, that in satisfying its obligation under this Section 5.05(c), TopCo Parent shall not be obligated to pay for coverage for any 12-month period aggregate premiums for insurance in excess of the D&O Tail Premium Cap, it being understood and agreed that TopCo Parent shall nevertheless be obligated to provide such coverage as may be obtained for the Annual Amount.
(d) In the event that TopCo Parent or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a substantial portion of its properties and other assets to any person, or if Parent dissolves the Surviving Corporation, then, and in each such case, Parent shall cause proper provision shall to be made so that the applicable successors and assigns or transferees expressly assume the obligations set forth in this Section 5.05.
(e) The provisions of this Section 5.05 are intended to be for the benefit of, and will be enforceable by, each Indemnified Party, his or her heirs and his or her representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract contract or otherwise. The obligations of TopCo under this Section 5.05 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.05.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) All rights From and for six years after the Effective Time, the Surviving Corporation shall indemnify, defend and hold harmless, and provide advancement of expenses to, each person who is now, or has been at any time prior to indemnification the date of this Agreement or who becomes prior to the Effective Time, an officer or director of the Company or any of its Subsidiaries (an “Indemnified Party”), against all losses, claims, damages, costs, expenses, liabilities or judgments or amounts that are paid in settlement of or in connection with any claim, action, suit, proceeding or investigation based in whole or in part on or arising in whole or in part out of the fact that such person is or was a director or officer of the Company or any Subsidiary of the Company, and exculpation from liabilities for acts pertaining to any matter existing or occurring, or any act or omissions occurring occurring, at or prior to the Effective Time, whether asserted or claimed prior to, or at or after, the Effective Time (including matters, acts or omissions occurring in connection with the approval of this Agreement and rights the consummation of the transactions contemplated thereby), to the same extent as such persons are indemnified or have the right to advancement of expenses relating thereto now existing in favor as of the date of this Agreement by the Company pursuant to the Company’s articles of incorporation, bylaws and indemnification agreements with any person who is directors or officers of the Company or its Subsidiaries that have been disclosed to Parent prior to the Effective Time becomesdate of this Agreement and are listed in respect of clause (iv) on Schedule 3.1(f).
(b) In the event of any threatened or actual third party claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including any such claim, action suit, proceeding or investigation in which any individual who is now, or has been at any time prior to the date of this Agreement, a director, officer, employee or agent (including as a fiduciary with respect who becomes prior to a Company Benefit Plan) of the Company, any of its Subsidiaries or any of their respective predecessors as provided in the Company Certificate of Incorporation, the Company By-laws, the organizational documents of any Subsidiary of the Company or any indemnification agreement, between a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company or any of its Subsidiaries and the Company or any of its Subsidiaries (in each case, as in effect on the date hereof) shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such director, officer, employee or agent.
(b) Without limiting Section 5.05(a) or any rights of any director or officer of the Company or any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) pursuant to any indemnification agreement, from and after the Effective Time, in the event of any an Indemnified Party, is, or is threatened or actual claimto be, action, suit, proceeding or investigation (made a “Claim”), whether civil, criminal or administrative, party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party he is or was a director (including in a capacity as a member of any board committee) director, officer or officer employee of the Company, Company or any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactionstransactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, TopCo shall indemnify the Parties agree to cooperate and hold harmless, as use their best efforts to defend against and to the fullest extent permitted by Law, each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses respond thereto.
(including attorney’s fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by applicable Law), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. TopCo shall not settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification would reasonably be expected to be sought by an Indemnified Party hereunder, unless (ic) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification of such Indemnified Party from any and all liability arising out of such Claim; or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could seek indemnification hereunder. TopCo’s obligations under this Section 5.05(b) shall continue in full force and effect for For a period of six years from the Effective Time; provided, however, that all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the final disposition of such Claim.
(c) The Company shall use commercially reasonable efforts to obtain, at or prior to after the Effective Time, prepaid (or “tail”) the Surviving Corporation shall use reasonable best efforts to maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company (provided, that the Surviving Corporation may substitute therefor commercially available policies in with a substantially comparable insurer (or self-insurance) of at least substantially the same coverage, amounts and retentions containing terms and conditions which are no less advantageous to the insured) with respect of acts to claims arising from facts or omissions occurring events which occurred at or prior to the Effective Time for six years from before the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that, without that the prior written consent of TopCo, the Company may not expend therefor in excess of 300% of the amount (the “Annual Amount”) paid by the Company for coverage for the most recently completed 12-month period prior to the date of this Agreement (such amount, equal to 300% of the annual amount, the “D&O Tail Premium Cap”). In the event the Company does not obtain such “tail” insurance policies, then, for a period of six years from the Effective Time, TopCo shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that (i) TopCo may substitute therefor policies of a reputable and financially sound insurance company containing terms, including with respect to coverage and amounts, no less favorable to any Indemnified Party and (ii) in satisfying its obligation under this Section 5.05(c), TopCo Surviving Corporation shall not be obligated to pay make annual premium payments for coverage such insurance to the extent such premiums exceed 200% of the premiums paid as of the date hereof by the Company for any 12-month period aggregate such insurance (the premiums paid as of the date hereof by the Company for such insurance, the “Company’s Current Premium”), and if such premiums for such insurance in excess would at any time exceed 200% of the D&O Tail Premium CapCompany’s Current Premium, it being understood and agreed that TopCo then the Surviving Corporation shall nevertheless be obligated use reasonable best efforts to maintain policies of insurance which, in the Surviving Corporation’s good faith determination, provide such the maximum coverage as may be obtained for available at an annual premium not exceeding 200% of the Annual AmountCompany’s Current Premium.
(d) In If the event that TopCo Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and is shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or a substantial portion substantially all of its properties and other assets to any person, then, and in each such case, to the extent necessary, proper provision shall be made so that the applicable successors and assigns or transferees expressly of the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 5.05SECTION 5.5.
(e) The provisions of this Section 5.05 5.5 are intended to be for the benefit of, and will shall be enforceable by, each Indemnified Party, Party and other Person named herein and his or her heirs and his or her representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract or otherwise. The obligations of TopCo under this Section 5.05 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.05.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of the current or former directors or officers of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any person who is existing indemnification agreements or arrangements of the Company and its Subsidiaries shall survive the Merger and shall continue in full force and effect in accordance with their terms, and shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of such individuals for acts or omissions occurring at or prior to the Effective Time becomesTime.
(b) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including any such claim, action suit, proceeding or investigation in which any individual who is now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company, any of its Subsidiaries or any of their respective predecessors as provided in the Company Certificate of Incorporation, the Company By-laws, the organizational documents of any Subsidiary of the Company or any indemnification agreement, between a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company or any of its Subsidiaries and the Company or any of its Subsidiaries (in each case, as in effect on the date hereof) shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such director, officer, employee or agent.
(b) Without limiting Section 5.05(a) or any rights of any director or officer of the Company or any of its Subsidiaries or any of their respective predecessors (each, an “the "Indemnified Party”) pursuant to any indemnification agreement, from and after the Effective Time, in the event of any threatened or actual claim, action, suit, proceeding or investigation (a “Claim”Parties"), whether civilis, criminal or administrativeis 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 fact that the Indemnified Party he is or was a director (including in a capacity as a member of any board committee) director, officer or officer employee of the Company, Company or any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactionstransactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, TopCo shall indemnify the parties hereto agree to cooperate and hold harmless, as use their best efforts to defend against and to the fullest extent permitted by Law, each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including attorney’s fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by applicable Law), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. TopCo shall not settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification would reasonably be expected to be sought by an Indemnified Party hereunder, unless (i) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification of such Indemnified Party from any and all liability arising out of such Claim; or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could seek indemnification hereunder. TopCo’s obligations under this Section 5.05(b) shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the final disposition of such Claimrespond thereto.
(c) The Company shall use commercially reasonable efforts to obtain, at or prior to For six years after the Effective Time, prepaid (or “tail”) the Surviving Corporation shall maintain in effect the Company's current directors’ ' and officers’ ' liability insurance policies in respect of covering acts or omissions occurring at or prior to the Effective Time for six years from with respect to those Persons who are currently covered by the Effective Time, covering each Indemnified Party Company's directors' and officers' liability insurance policy on terms with respect to such coverage and amounts amount no less favorable to the Company's directors and officers currently covered by such insurance than those of such policies policy in effect on the date of this Agreementhereof; provided, however, that, without that the prior written consent of TopCo, the Company may not expend therefor in excess of 300% of the amount (the “Annual Amount”) paid by the Company for coverage for the most recently completed 12-month period prior to the date of this Agreement (such amount, equal to 300% of the annual amount, the “D&O Tail Premium Cap”). In the event the Company does not obtain such “tail” insurance policies, then, for a period of six years from the Effective Time, TopCo shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that (i) TopCo Surviving Corporation may substitute therefor policies of a reputable and financially sound insurance company Parent or its Subsidiaries (including self insurance) containing terms, including terms with respect to coverage and amounts, amount no less favorable to any Indemnified Party and (ii) such directors or officers; provided, further, that in satisfying its obligation under this Section 5.05(c), TopCo no event shall not the Surviving Corporation be obligated required to pay for coverage for any 12-month period aggregate premiums for insurance under this Section 5.5(c) in excess of 150% of the D&O Tail Premium Capaggregate premiums paid by the Company in 2003 on an annualized basis for such purpose and, it being understood and agreed that TopCo if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall nevertheless be obligated to provide use its reasonable best efforts obtain a policy with the greatest coverage available for a cost not exceeding such coverage as may be obtained for the Annual Amountamount.
(d) In the event that TopCo 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 a substantial portion of its properties and other assets to any person, then, and in each such case, proper provision shall be made so that the applicable successors and assigns or transferees expressly assume the obligations set forth in this Section 5.05.
(e) The provisions of this Section 5.05 5.5 shall survive the Effective Time and are intended to be for the benefit of, and will shall be enforceable by, each Indemnified Party, Party and other Person named herein and his or her heirs and his or her representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract or otherwise. The obligations of TopCo under this Section 5.05 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.05.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any person who is or prior to the Effective Time becomes, or has been at any time prior to the date of this Agreement, a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Planan employee benefit plan) of the Company, any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) as provided in the Company Certificate of Incorporation, the Company By-lawsLaws, the organizational documents of any Subsidiary of the Company or any indemnification agreement, agreement between a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company or any of its Subsidiaries such Indemnified Party and the Company or any of its Subsidiaries (in each case, as in effect on the date hereof) shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such director, officer, employee or agentIndemnified Party.
(b) Without limiting Section 5.05(a5.06(a) or any rights of any director or officer of the Company or any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) Party pursuant to any indemnification agreement, from and after the Effective Time, in the event of any threatened or actual claim, suit, action, suit, proceeding or investigation (a “Claim”), whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party is or was a director (including in a capacity as a member of any board committee) ), officer, employee or officer agent of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactionstransactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, TopCo shall Parent, H&H Acquisition Sub, H&H Group and the Surviving Corporation shall, jointly and severally, indemnify and hold harmless, as and to the fullest extent that the Company would be permitted by Lawto do so under applicable Law (for the avoidance of doubt, subject to the limitations on the Company’s ability to indemnify its directors and officers under Section 145 of the DGCL), each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorney’s fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by applicable Law), judgments, fines fines, penalties and amounts paid in settlement of or in connection with any such threatened or actual Claim. TopCo Neither Parent, H&H Acquisition Sub, H&H Group nor the Surviving Corporation shall not settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification would reasonably be expected to could be sought by an Indemnified Party hereunder, unless (i) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification of such Indemnified Party from any and all liability arising out of such Claim; Claim or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo Parent, H&H Acquisition Sub, H&H Group and the Surviving Corporation shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could seek indemnification hereunder. TopCoParent’s, H&H Acquisition Sub’s, H&H Group’s and the Surviving Corporation’s obligations under this Section 5.05(b5.06(b) shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the final disposition of such Claim.
(c) The Company shall use commercially reasonable efforts to may obtain, at or prior to the Effective Time, prepaid (or “tail”) directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby) for six (6) years from the Effective Time, covering each Indemnified Party person who is covered by such policies on the date of this Agreement on terms with respect to such coverage and amounts that are, individually and in the aggregate, no less favorable to any Indemnified Party than those of such policies in effect on the date of this Agreement; provided, however, that, without that the prior written consent of TopCo, maximum aggregate premium for such insurance policies shall not exceed the Company may not expend therefor in excess of 300% of the amount (the “Annual Amount”) paid maximum aggregate annual premium contemplated by the Company second succeeding sentence. If such “tail” insurance policies have been obtained by the Company, Parent, H&H Acquisition Sub and H&H Group shall cause such policies to be maintained in full force and effect, for coverage for their full term, and cause all obligations thereunder to be honored by it and the most recently completed 12-month period prior to the date of this Agreement (such amount, equal to 300% of the annual amount, the “D&O Tail Premium Cap”)Surviving Corporation. In the event the Company does not obtain such “tail” insurance policies, then, for a period of six (6) years from the Effective Time, TopCo Parent, H&H Acquisition Sub and H&H Group shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective TimeTime (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby), covering each Indemnified Party on terms with respect to such coverage and amounts that are, individually and in the aggregate, no less favorable to any Indemnified Party than those of such policies in effect on the date of this Agreement; provided, however, that neither Parent, H&H Acquisition Sub, H&H Group nor the Surviving Corporation shall be required to pay an aggregate annual premium for such insurance policies in excess of two hundred fifty percent (i250%) TopCo of the annual premium paid by the Company for coverage for its last full fiscal year for such insurance (which amount the Company represents and warrants is set forth in Section 5.06(c) of the Company Disclosure Letter); provided further that if the annual premium of such insurance coverage exceeds such amount, Parent, H&H Acquisition Sub, H&H Group or the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; and provided further that Parent, H&H Acquisition Sub and H&H Group may substitute therefor policies of a reputable and financially sound insurance company containing terms, including with respect to coverage and amounts, that are, individually and in the aggregate, no less favorable to any Indemnified Party and (ii) in satisfying its obligation under this Section 5.05(c), TopCo shall not be obligated to pay for coverage for any 12-month period aggregate premiums for insurance in excess of the D&O Tail Premium Cap, it being understood and agreed that TopCo shall nevertheless be obligated to provide such coverage as may be obtained for the Annual AmountParty.
(d) In the event that TopCo Parent, H&H Acquisition Sub, H&H Group or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of such consolidation or merger merger, including any internal reorganization or (ii) transfers or conveys all or a substantial portion of its properties and other assets to any person, or if Parent, H&H Acquisition Sub, or H&H Group dissolves the Surviving Corporation, then, and in each such case, Parent, H&H Acquisition Sub and H&H Group shall cause proper provision shall to be made so that the applicable successors and assigns or transferees expressly assume the obligations set forth in this Section 5.055.06.
(e) The obligations of Parent, H&H Acquisition Sub, H&H Group and the Surviving Corporation under this Section 5.06 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 5.06 applies without the consent of such affected Indemnified Party. The provisions of this Section 5.05 5.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified Party, his or her heirs and his or her representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract contract or otherwise. The obligations of TopCo under this Section 5.05 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.05.
Appears in 1 contract
Indemnification, Exculpation and Insurance. (a) All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any person who is or prior to the Effective Time becomes, or has been at any time prior to the date of this Agreement, a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Planan employee benefit plan) of the Company, any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) as provided in the Company Certificate of Incorporation, the Company By-lawsLaws, the organizational documents of any Subsidiary of the Company or any indemnification agreement, agreement between a director, officer, employee or agent (including as a fiduciary with respect to a Company Benefit Plan) of the Company or any of its Subsidiaries such Indemnified Party and the Company or any of its Subsidiaries (in each case, as in effect on the date hereof) shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such director, officer, employee or agentIndemnified Party.
(b) Without limiting Section 5.05(a7.06(a) or any rights of any director or officer of the Company or any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) Party pursuant to any indemnification agreementagreement set forth in Section 7.06(b) of the Company Disclosure Letter, from and after the Effective Time, in the event of any threatened or actual claim, suit, action, suit, proceeding or investigation (a “Claim”), whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party is or was a director (including in a capacity as a member of any board committee) ), or officer of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactionstransactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, TopCo the Surviving Corporation shall (x) 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 final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by applicable Law), judgments, fines and 41 amounts paid in settlement of or in connection with any such threatened or actual Claim, and (y) comply with the terms of each such indemnification agreement with respect to such Claim. TopCo Any determination of entitlement to indemnification under the preceding sentences shall not be made by an independent counsel selected jointly by the Surviving Corporation and such indemnified party. None of Parent or the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification would reasonably be expected to be has been sought by an Indemnified Party hereunder, unless (i) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim, (ii) TopCo agrees to provide for an indemnification of such Indemnified Party from any and all liability arising out of such Claim; Claim or (iii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. TopCo Parent and the Surviving Corporation shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could seek has validly sought indemnification hereunderunder such indemnification agreement. TopCoParent’s and the Surviving Corporation’s obligations under this Section 5.05(b7.06(b) shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the final disposition of such Claim.
(c) The Company shall use commercially reasonable efforts to may obtain, at or prior to the Effective Time, prepaid (or “tail”) directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time for six (6) years from the Effective Time, covering each Indemnified Party person who is covered by such policies on the date of this Agreement on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that, without that the prior written consent of TopCo, the Company may maximum aggregate annual premium for such insurance policies for any such year shall not expend therefor be in excess of 300% of the amount (the “Annual Amount”) paid maximum aggregate annual premium contemplated by the Company for coverage for immediately following sentence; provided, further, that, any such tail policy may not be amended, modified or cancelled or revoked by the most recently completed 12-month period prior to Company, Parent or the date of this Agreement (such amount, equal to 300% of the annual amount, the “D&O Tail Premium Cap”)Surviving Corporation. In the event the Company does not obtain such “tail” insurance policies, then, for a period of six (6) years from the Effective Time, TopCo Parent shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party on terms with respect to such coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that neither Parent nor the Surviving Corporation shall be required to pay an aggregate annual premium for such insurance policies in excess of 300% of the annual premium paid by the Company for coverage for its last full fiscal year for such insurance (iwhich amount the Company represents and warrants is set forth in Section 7.06(c) TopCo of the Company Disclosure Letter); and provided further that if the annual premiums of such insurance coverage exceed such amount, Parent or the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; and provided further that Parent may substitute therefor policies of a reputable and financially sound insurance company containing terms, including with respect to coverage and amounts, no less favorable to any Indemnified Party and (ii) in satisfying its obligation under this Section 5.05(c), TopCo shall not be obligated to pay for coverage for any 12-month period aggregate premiums for insurance in excess of the D&O Tail Premium Cap, it being understood and agreed that TopCo shall nevertheless be obligated to provide such coverage as may be obtained for the Annual AmountParty.
(d) In the event that TopCo the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or a substantial portion of its properties and other assets to any person, or if Parent dissolves the Surviving Corporation, then, and in each such case, the Surviving Corporation or Parent, respectively, shall cause proper provision shall to be made so that the applicable successors and assigns or transferees expressly assume the obligations set forth in this Section 5.057.06 unless assumed by operation of Law.
(e) The From and after the Effective Time (but not prior thereto), the provisions of this Section 5.05 7.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified Party, his or her heirs Party and his or her representatives, and heirs. The provisions of this Section 7.06 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 TopCo under this Section 5.05 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such Indemnified Party. TopCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.05.
Appears in 1 contract
