Indemnification of Directors and Officers; D&O Insurance. (a) From and after the Effective Time, Umpqua shall indemnify and hold harmless, to the fullest extent permitted under applicable law (and Umpqua shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification), each present and former director and officer of NBB and TVB (collectively, the “Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time, including the transactions contemplated by this Agreement; provided, however, that Umpqua shall not be required to indemnify any Indemnified Party pursuant hereto if it shall be determined that the Indemnified Party acted in bad faith and not in a manner such Party believed to be in or not opposed to the best interests of NBB. (b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 7.10, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Umpqua thereof, but the failure to so notify shall not relieve Umpqua of any liability it may have to such Indemnified Party if such failure does not materially prejudice the indemnifying party. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) Umpqua shall have the right to assume the defense thereof and Umpqua shall 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 Umpqua elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Umpqua and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and Umpqua shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that Umpqua shall be obligated pursuant to this paragraph (b) 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, (ii) the Indemnified Parties will cooperate in the defense of any such matter and (iii) Umpqua shall not be liable for any settlement effected without its prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; and provided, further, that Umpqua shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. (c) All rights to indemnification for acts or omissions occurring prior to the Effective Time now existing in favor of an Indemnified Party as provided in their respective articles of incorporation or bylaws and any existing indemnification agreements set forth in Section 7.10(c) of the NBB Disclosure Schedule, shall survive the Merger and continue in full force and effect in accordance with their terms, it being understood that nothing in this sentence shall require any amendment to the articles of incorporation or bylaws of Umpqua or Umpqua Bank. (d) Umpqua shall maintain NBB’s existing officers’ and directors’ liability insurance for a period of 3 years after the Effective Time or otherwise provide comparable coverage for such period. (e) If Umpqua or any of its successors or assigns (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then, and in each such case, proper provisions shall be made so that the successors and assigns of the surviving corporation shall assume all of the obligations set forth in this Section 7.10. (f) The provisions of this Section 7.10 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (North Bay Bancorp/Ca), Agreement and Plan of Reorganization (Umpqua Holdings Corp)
Indemnification of Directors and Officers; D&O Insurance. (a) From and after the Effective Time, Umpqua Company shall indemnify and hold harmless, to the fullest extent permitted under applicable law (and Umpqua Company shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification), each present and former director and officer of NBB Stockmans and TVB Stockmans Bank (collectively, the “Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time, including the transactions contemplated by this Agreement; provided, however, that Umpqua Company shall not be required to indemnify any Indemnified Party pursuant hereto if it shall be determined that the Indemnified Party acted in bad faith and not in a manner such Party believed to be in or not opposed to the best interests of NBBStockmans.
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 7.10, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Umpqua Company thereof, but the failure to so notify shall not relieve Umpqua Company of any liability it may have to such Indemnified Party if such failure does not materially prejudice the indemnifying party. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) Umpqua Company shall have the right to assume the defense thereof and Umpqua Company shall 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 Umpqua Company elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Umpqua Company and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and Umpqua Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that Umpqua Company shall be obligated pursuant to this paragraph (b) 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, (ii) the Indemnified Parties will cooperate in the defense of any such matter and (iii) Umpqua Company shall not be liable for any settlement effected without its prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; and provided, further, that Umpqua Company shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law.
(c) All rights to indemnification for acts or omissions occurring prior to the Effective Time now existing in favor of an Indemnified Party as provided in their respective articles of incorporation or bylaws and any existing indemnification agreements set forth in Section 7.10(c) of the NBB Stockmans Disclosure Schedule, shall survive the Merger and continue in full force and effect in accordance with their terms, it being understood that nothing in this sentence shall require any amendment to the articles of incorporation or bylaws of Umpqua Company or Umpqua Bank.
(d) Umpqua Company shall maintain NBB’s Stockmans’ existing officers’ and directors’ liability insurance for a period of 3 years after the Effective Time or otherwise provide comparable coverage for such period; provided, however, that if the annual cost of such “tail” insurance policies are not available at a cost not greater than 200% of the annual premium paid on the date of this Agreement by Stockmans for such insurance (the “Insurance Cap”), Company shall cause to be obtained as much comparable insurance for as long a period (not to exceed three years from the Effective Date) as is available for a cost not to exceed the Insurance Cap.
(e) If Umpqua Company or any of its successors or assigns (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then, and in each such case, proper provisions shall be made so that the successors and assigns of the surviving corporation shall assume all of the obligations set forth in this Section 7.10.
(f) The provisions of this Section 7.10 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Premierwest Bancorp)
Indemnification of Directors and Officers; D&O Insurance. (a) From In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation 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 Date, a director or officer of APB (the "Indemnified Parties") is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was a director, officer or employee of APB, or (ii) this Agreement or any of the transactions contemplated hereby, whether in any case asserted or arising before or after the Effective Date, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. On and after the Effective Time, Umpqua shall indemnify and hold harmless, as and to the fullest extent permitted under applicable law law, each Indemnified Party damages, liabilities, costs, expenses (including reasonable attorneys' fees and Umpqua shall also expenses in advance expenses as incurred of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted under by applicable law provided the Person to whom expenses are advanced provides upon receipt of an undertaking to repay such advances if it is ultimately determined that such Person Indemnified Party is not entitled to indemnification), each present judgments and former director and officer of NBB and TVB (collectively, the “Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities (collectively, “Costs”) fines incurred in connection with any such threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to and in the Effective Time, including the transactions contemplated by this Agreement; provided, however, that Umpqua shall not be required to indemnify any Indemnified Party pursuant hereto if it shall be determined that the Indemnified Party acted in bad faith and not in a manner such Party believed to be in or not opposed to the best interests of NBB.
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 7.10, upon learning event of any such threatened or actual claim, action, suit, proceeding or investigation, shall promptly notify Umpqua thereofthe Indemnified Parties may retain counsel reasonably satisfactory to them ; provided, but the failure to so notify shall not relieve Umpqua of any liability it may have to such Indemnified Party if such failure does not materially prejudice the indemnifying party. In the event of any such claimhowever, action, suit, proceeding or investigation that (whether arising before or after the Effective Time), (i1) Umpqua shall have the right to assume the defense thereof and upon such assumption Umpqua shall not be liable to such any Indemnified Parties Party for any legal expenses of other counsel or any other expenses subsequently incurred by such any Indemnified Parties Party in connection with the defense thereof, except that if Umpqua elects not to assume such defense or counsel for the Indemnified Parties reasonably advises the Indemnified Parties that there are issues which raise conflicts of interest between Umpqua and the Indemnified Parties, the Indemnified Parties may retain counsel reasonably satisfactory to themthem and to Umpqua (in accordance with the terms of the Indemnification Agreements) after notification, and Umpqua shall pay all the reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that Umpqua shall be obligated pursuant to this paragraph (b) 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 interestParties, (ii) the Indemnified Parties will cooperate in the defense of any such matter and (iii2) Umpqua shall not be liable for any settlement effected without its prior written consent, which consent shall not be unreasonably withheld, conditioned conditioned, or delayed; and provided, further, that (3) Umpqua shall not have any no obligation hereunder to any Indemnified Party when and if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become finalfinal and non-appealable, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable lawlaw or to any Indemnified Party that commits fraud or acted in bad faith and not in a manner such Indemnified Party believed to be in or not opposed to the best interests of APB.
(b) Any Indemnified Party wishing to claim indemnification under Section 7.6(a), upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Umpqua thereof, provided that the failure to so notify Umpqua shall not relieve Umpqua of its obligations hereunder except to the extent that such failure materially prejudices Umpqua. Umpqua's obligations under Section 7.6(a) continue in full force and effect for a period of six years from the Effective Date; 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) All Umpqua agrees that all rights to indemnification for acts or omissions occurring prior to the Effective Time now existing in favor of an Indemnified Party as provided in their respective articles of incorporation or bylaws the APB Articles, the APB Bylaws and any existing indemnification agreements set forth the Indemnification Agreements as in Section 7.10(c) effect as of the NBB Disclosure Scheduledate of this Agreement with respect to matters occurring prior to the Effective Time, shall survive the Merger and continue in full force and effect in accordance with their terms, it being understood and shall be honored by Umpqua or its successor as if they were the indemnifying party thereunder, without any amendment thereto, for a period of six years from the Effective Date, provided, further, however, that nothing contained in this sentence Section 7.6(c) shall be deemed to preclude the liquidation, consolidation or merger of APB, in which case all of such rights to indemnification and limitations on liability shall be deemed to so survive and continue as an obligation of Umpqua or the successor to APB notwithstanding any such liquidation, consolidation or merger. Nothing in this Section 7.6(c) shall require any amendment to the articles of incorporation or bylaws of Umpqua or Umpqua BankUmpqua.
(d) Umpqua shall maintain NBB’s Umpqua, from and after the Effective Date, will cause the persons who served as directors or officers of APB on or before the Effective Date to be covered by APB's existing directors' and officers’ and directors’ ' liability insurance policy. Such insurance coverage shall commence on the Effective Date and will be provided for a period of 3 no less than six years after the Effective Time or otherwise provide comparable coverage for such period.Date
(e) If Umpqua or any of its successors or assigns (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation Surviving Bank or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then, and in each such case, proper provisions shall be made so that the successors and assigns of the surviving corporation Surviving Bank shall assume all of the obligations set forth in this Section 7.107.6.
(f) The provisions of this Section 7.10 7.6(a), (b), (c), (d), and (e) are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Indemnification of Directors and Officers; D&O Insurance. (a) From and after the Effective Time, Umpqua shall indemnify and hold harmless, to the fullest extent permitted under applicable law (and Umpqua shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification), each present and former director and officer of NBB WSB and TVB WSB Subsidiaries (collectively, the “"Indemnified Parties”") against any costs or expenses (including reasonable attorneys’ ' fees), judgments, fines, losses, claims, damages or liabilities (collectively, “"Costs”") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time, including the transactions contemplated by this Agreement; provided, however, that Umpqua shall not be required to indemnify any Indemnified Party pursuant hereto if it shall be determined that the Indemnified Party acted in bad faith and not in a manner such Party believed to be in or not opposed to the best interests of NBBWSB.
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 7.107.13, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Umpqua thereof, but the failure to so notify shall not relieve Umpqua of any liability it may have to such Indemnified Party if such failure does not materially prejudice the indemnifying party. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) Umpqua shall have the right to assume the defense thereof and Umpqua shall 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 Umpqua elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Umpqua and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and Umpqua shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that Umpqua shall be obligated pursuant to this paragraph (b) 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, (ii) the Indemnified Parties will cooperate in the defense of any such matter and (iii) Umpqua shall not be liable for any settlement effected without its prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; and provided, further, that Umpqua shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law.
(c) All rights to indemnification for acts or omissions occurring prior to the Effective Time now existing in favor of an Indemnified Party as provided in their respective articles of incorporation or bylaws and any existing indemnification agreements set forth in Section 7.10(c) of the NBB Disclosure Schedule, shall survive the Merger and continue in full force and effect in accordance with their terms, it being understood that nothing in this sentence shall require any amendment to the articles of incorporation or bylaws of Umpqua or Umpqua Bank.
(d) Umpqua shall maintain NBB’s WSB's existing officers’ ' and directors’ ' liability insurance for a period of 3 years after the Effective Time (or if the cost exceeds $300,000, such period that can be purchased for $300,000) or otherwise provide comparable insured coverage for such period.
(ed) If Umpqua or any of its successors or assigns (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then, and in each such case, proper provisions shall be made so that the successors and assigns of the surviving corporation shall assume all of the obligations set forth in this Section 7.107.13.
(fe) The provisions of this Section 7.10 7.13 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Umpqua Holdings Corp)
Indemnification of Directors and Officers; D&O Insurance. (a) From and after the Effective Time, Umpqua shall indemnify and hold harmless, to the fullest extent permitted under applicable law (and Umpqua shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification), each present and former director and officer of NBB WSB and TVB WSB Subsidiaries (collectively, the “Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time, including the transactions contemplated by this Agreement; provided, however, that Umpqua shall not be required to indemnify any Indemnified Party pursuant hereto if it shall be determined that the Indemnified Party acted in bad faith and not in a manner such Party believed to be in or not opposed to the best interests of NBBWSB.
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 7.107.13, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Umpqua thereof, but the failure to so notify shall not relieve Umpqua of any liability it may have to such Indemnified Party if such failure does not materially prejudice the indemnifying party. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) Umpqua shall have the right to assume the defense thereof and Umpqua shall 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 Umpqua elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Umpqua and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and Umpqua shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that Umpqua shall be obligated pursuant to this paragraph (b) 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, (ii) the Indemnified Parties will cooperate in the defense of any such matter and (iii) Umpqua shall not be liable for any settlement effected without its prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; and provided, further, that Umpqua shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law.
(c) All rights to indemnification for acts or omissions occurring prior to the Effective Time now existing in favor of an Indemnified Party as provided in their respective articles of incorporation or bylaws and any existing indemnification agreements set forth in Section 7.10(c) of the NBB Disclosure Schedule, shall survive the Merger and continue in full force and effect in accordance with their terms, it being understood that nothing in this sentence shall require any amendment to the articles of incorporation or bylaws of Umpqua or Umpqua Bank.
(d) Umpqua shall maintain NBBWSB’s existing officers’ and directors’ liability insurance for a period of 3 years after the Effective Time (or if the cost exceeds $300,000, such period that can be purchased for $300,000) or otherwise provide comparable insured coverage for such period.
(ed) If Umpqua or any of its successors or assigns (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then, and in each such case, proper provisions shall be made so that the successors and assigns of the surviving corporation shall assume all of the obligations set forth in this Section 7.107.13.
(fe) The provisions of this Section 7.10 7.13 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Western Sierra Bancorp)
Indemnification of Directors and Officers; D&O Insurance. (a) From In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation 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 Date, a director or officer of Foundation Bancorp or the Bank (the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he or she is or was a director, officer or employee of Foundation Bancorp or the Bank, or (ii) this Agreement or any of the transactions contemplated hereby, whether in any case asserted or arising before or after the Effective Date, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. On and after the Effective Time, Umpqua PCC shall indemnify and hold harmless, as and to the fullest extent permitted under applicable law law, the Foundation Bancorp Articles and Foundation Bancorp Bylaws, and the Bank Articles and the Bank Bylaws, the Indemnified Parties against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys’ fees and Umpqua shall also expenses in advance expenses as incurred of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted under by applicable law provided the Person to whom expenses are advanced provides upon receipt of an undertaking to repay such advances if it is ultimately determined that such Person Indemnified Party is not entitled to indemnification), each present judgments and former director and officer of NBB and TVB (collectively, the “Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities (collectively, “Costs”) fines incurred in connection with any such threatened or actual claim, action, suit, proceeding or investigation, whether civiland in the event of any such threatened or actual claim, criminalaction, administrative suit, proceeding or investigativeinvestigation, arising out of or pertaining the Indemnified Parties may retain counsel reasonably satisfactory to matters existing or occurring at or prior to the Effective Time, including the transactions contemplated by this Agreementthem; provided, however, that Umpqua (1) PCC shall have the right to assume the defense thereof and upon such assumption PCC shall not be required liable to indemnify any Indemnified Party pursuant hereto for any legal expenses of other counsel or any other expenses subsequently incurred by any Indemnified Party in connection with the defense thereof, except that if it shall be determined that PCC elects not to assume such defense or counsel for the Indemnified Parties reasonably advises the Indemnified Parties that there are issues which raise conflicts of interest between PCC and the Indemnified Parties, the Indemnified Parties may retain counsel reasonably satisfactory to them after notification, and PCC shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties; (2) PCC shall not be liable for any settlement effected without its prior written consent, which shall not be unreasonably withheld, conditioned, or delayed; and (3) PCC shall have no obligation hereunder to any Indemnified Party acted when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such Indemnified Party in bad faith and the manner contemplated hereby is prohibited by applicable law; provided further, however, that any such determination shall not limit or affect the availability of insurance protection, as set forth in Section 7.8(d), unless the insurance policy provides for such a manner limitation or otherwise excludes coverage under such Party believed to be in or not opposed to the best interests of NBBcircumstances.
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 7.107.8(a), upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Umpqua thereofPCC thereof in writing, but provided that the failure to so notify PCC shall not relieve Umpqua PCC of any liability it may have its obligations hereunder except to such Indemnified Party if the extent that such failure does not materially prejudice the indemnifying partyprejudices PCC. In the event PCC’s obligations under Section 7.8(a) continue in full force and effect for a period of any such claim, action, suit, proceeding or investigation six (whether arising before or after 6) years from the Effective Time), (i) Umpqua shall have the right to assume the defense thereof and Umpqua shall 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 Umpqua elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Umpqua and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and Umpqua shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are receivedDate; provided, however, that Umpqua shall be obligated pursuant all rights to this paragraph (b) to pay for only one firm of counsel for all Indemnified Parties indemnification in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, (ii) the Indemnified Parties will cooperate in the defense respect of any claim asserted or made within such matter and (iii) Umpqua period shall not be liable for any settlement effected without its prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; and provided, further, that Umpqua shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that continue until the indemnification final disposition of such Indemnified Party in the manner contemplated hereby is prohibited by applicable lawclaim.
(c) All PCC agrees that all rights to indemnification for acts or omissions occurring prior to the Effective Time now existing in favor of an Indemnified Party as provided in their respective articles of incorporation the Foundation Bancorp Articles or bylaws Foundation Bancorp Bylaws, or the Bank Articles and any existing indemnification agreements set forth the Bank Bylaws, as in Section 7.10(c) effect as of the NBB Disclosure Scheduledate of this Agreement, with respect to matters occurring prior to the Effective Time, shall survive the Merger Mergers and continue in full force and effect in accordance with their terms, it being understood that nothing and shall be honored by PCC or its successor as if they were the indemnifying party thereunder, without any amendment thereto, for a period of six (6) years from the Effective Date. Nothing in this sentence Section 7.8(c) shall require any amendment to the articles of incorporation of PCC or bylaws of Umpqua or Umpqua BankPCB.
(d) Umpqua Prior to the Effective Time, Foundation Bancorp shall maintain NBB’s existing officersand, if Foundation Bancorp is unable to, PCC shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay for “tail” insurance with a claims period of at least six (6) years from and after the Effective Time with respect to directors’ and directorsofficers’ liability insurance (collectively, “D&O Insurance”) with benefits and levels of coverage at least as favorable to the Indemnified Parties as Foundation Bancorp’s existing policies with respect to matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the transactions or actions contemplated hereby); provided, however, that in no event shall Foundation Bancorp or PCC expend for “tail” insurance policies a premium amount in excess of 300% of the annual premiums currently paid by Foundation Bancorp for such insurance. If Foundation Bancorp and the Surviving Corporation for any reason fails to obtain such “tail” insurance policies as of the Effective Time, the Surviving Corporation shall, and PCC shall cause the Surviving Corporation to, continue to maintain in effect for a period of 3 at least six (6) years from and after the Effective Time the D&O Insurance in place as of the date of this Agreement with benefits and levels of coverage at least as favorable to the Indemnified Parties as provided in Foundation Bancorp’s existing policies as of the date of this Agreement, or otherwise provide the Surviving Corporation shall, and PCC shall cause the Surviving Corporation to, purchase comparable coverage D&O Insurance for such periodsix (6) year period with benefits and levels of coverage at least as favorable to the Indemnified Parties as provided in Foundation Bancorp’s existing policies as of the date of this Agreement; provided, however, that in no event shall PCC or the Surviving Corporation be required to expend for such policies an annual premium amount in excess of 300% of the annual premiums currently paid by Foundation Bancorp for such insurance; and, provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall, and PCC shall cause the Surviving Corporation to, obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(e) If Umpqua PCC or any of its successors or assigns (i1) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii2) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then, and in each such case, proper provisions shall be made so that the successors and assigns of the surviving corporation shall assume all of the obligations set forth in this Section 7.107.8.
(f) The provisions of this Section 7.10 7.8(a), (b), (c), (d) and (e) are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representativesrepresentatives following consummation of the Mergers.
(g) Notwithstanding the foregoing provisions of this Section 7.8, PCC shall have no obligation to indemnify an Indemnified Party against a claim asserted by another Indemnified Party, or any affiliate of Foundation Bancorp or any Foundation Bancorp Subsidiary.
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Indemnification of Directors and Officers; D&O Insurance. (a) From All rights to indemnification for and after the Effective Time, Umpqua shall indemnify and hold harmless, to the fullest extent permitted under applicable law (and Umpqua shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification), each present and former director and officer of NBB and TVB (collectively, the “Indemnified Parties”) against any costs exculpation from liabilities for acts or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or omissions occurring at or prior to the Effective Time, including the transactions contemplated by this Agreement; provided, however, that Umpqua shall not be required to indemnify any Indemnified Party pursuant hereto if it shall be determined that the Indemnified Party acted in bad faith and not in a manner such Party believed to be in or not opposed to the best interests of NBB.
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 7.10, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Umpqua thereof, but the failure to so notify shall not relieve Umpqua of any liability it may have to such Indemnified Party if such failure does not materially prejudice the indemnifying party. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) Umpqua shall have the right to assume the defense thereof and Umpqua shall 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 Umpqua elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Umpqua and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and Umpqua shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that Umpqua shall be obligated pursuant to this paragraph (b) 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, (ii) the Indemnified Parties will cooperate in the defense of any such matter and (iii) Umpqua shall not be liable for any settlement effected without its prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; and provided, further, that Umpqua shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law.
(c) All rights to indemnification for acts or omissions occurring prior to the Effective Time Closing now existing in favor of the current or former directors or officers of the Bank Entities or those individuals who become prior to the Closing a director or officer of the Bank Entities (each such director or officer, an “Indemnified Party D&O”) as provided in their respective articles the constituent documents of incorporation the Bank Entities, or bylaws in any indemnification agreement between the Bank Entities and any existing indemnification agreements set forth Indemnified D&O (in Section 7.10(c) each case, as in effect on the date of the NBB Disclosure Schedulethis Agreement and Previously Disclosed), shall will survive the Merger Closing and will continue in full force and effect in accordance with their termsrespective terms for a period of six (6) years from the Closing; provided, it being understood however, that nothing all rights to indemnification in respect of any civil, criminal or administrative action, against an Indemnified D&O asserted or made prior to the Closing or within such six-year period will continue until the final disposition of such civil, criminal or administrative action.
(b) From and after the Closing until the sixth (6th) anniversary thereof, all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Closing and rights to advancement of expenses relating thereto now existing in favor of any Indemnified D&O as provided in the Bank Entities’ respective constituent documents (or the constituent document of any successor to the Bank Entities) as in effect on the date of this Agreement, shall not be amended, restated, amended and restated, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified D&O.
(c) Notwithstanding anything in this sentence shall require any amendment Section 4.17 to the articles contrary, no Indemnified D&O shall have any right to contribution, indemnification, exculpation or right of incorporation advancement of expenses from Purchaser or bylaws any of Umpqua or Umpqua Bankits successors, with respect to any indemnification claims made by Purchaser under Article VI.
(d) Umpqua shall maintain NBB’s existing officers’ and directors’ liability insurance for For a period of 3 not less than six (6) years after the Effective Time Closing, Purchaser shall or otherwise shall cause Bank and any successor of the Bank to continuously maintain in effect, at its own expense, directors’ and officers’ liability and fiduciary liability insurance, covering each Indemnified D&O for acts and omissions, in their capacity as directors and/or officers of the Bank Entities, occurring on or prior to the Closing Date (including with respect to the transactions contemplated hereby) on terms no less favorable to such Indemnified D&Os than those of the Previously Disclosed insurance policies providing such coverage in effect on the date of this Agreement (including with respect to coverage, insurance limits and retention) and with an insurer or insurers with the same or higher A.M. Best rating as the Bank Entities’ current primary directors’ and officers’ liability and fiduciary liability insurer; provided, however, that in complying with its obligations pursuant to this Section 4.17(d), Purchaser shall not be required to expend annually in the aggregate an amount in excess of the amount set forth in Section 4.17(d) of the Bank Disclosure Schedules (the “Purchaser Premium Cap”) and, if Purchaser cannot obtain the insurance coverage required under this Section 4.17(d) without paying in excess of the Purchaser Premium Cap, Purchaser shall purchase such insurance with the maximum coverage reasonably available for the Purchaser Premium Cap; provided, further, this Section 4.17(d) may be satisfied if Purchaser obtains one or more prepaid policies (i.e., “tail coverage”) which, in the aggregate, provide comparable the Indemnified D&Os with the coverage described in this Section 4.17(d) for such periodan aggregate period of not less than six (6) years following the Closing with respect to claims arising from acts or omissions that occurred on or prior to the Closing Date.
(e) If Umpqua In the event that, after the Closing, other than pursuant to the Bank Merger Agreement, Purchaser, Bank or any of its their respective successors or assigns (i1) shall consolidate consolidates with or merge merges into any other corporation or entity Person and shall is not be the continuing or surviving corporation entity or entity of such consolidation or merger or (ii2) shall transfer transfers or conveys all or substantially all a substantial portion of its properties and other assets to any individual, corporation or other entityPerson, then, and in each such case, Purchaser shall, or shall cause Bank, as applicable, to make proper provisions shall be made provision so that the such successors and assigns of the surviving corporation shall expressly assume all of the obligations set forth in this Section 7.104.17.
(f) The provisions of this Section 7.10 4.17 are intended to be for the benefit of, and shall will be enforceable by, each of the Indemnified PartiesD&O, their his or her heirs and their representativeshis 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 from the Bank Entities or any other person by contract or otherwise except as expressly provided herein.
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