Indemnification of Directors and Officers. (a) Without limiting any other rights that any Indemnified Person may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from the Closing and until the six year anniversary of the Closing, the Company shall, and shall cause the Transferred Entities to, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Closing, a director or officer of any Transferred Entity or is or was serving at the request of a Transferred Entity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is a party or is otherwise involved (including as a witness) 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 a Transferred Entity or is or was serving at the request of a Transferred Entity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and the Company shall, or shall cause a Transferred Entity to, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Closing), (i) the Indemnified Persons may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to them, and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received and (ii) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Entity (but the failure so to notify shall not relieve the Company from any obligations that it may have under this Section 8.6 except to the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (3) years.
Appears in 4 contracts
Samples: Business Combination Agreement (Pure Acquisition Corp.), Business Combination Agreement (HighPeak Energy, Inc.), Business Combination Agreement (Pure Acquisition Corp.)
Indemnification of Directors and Officers. (a) Without limiting any other rights that any Indemnified Person may have pursuant to any employment agreement or indemnification agreement in effect on From and after the date hereof or otherwiseEffective Time and for a period of seven years thereafter, from the Closing and until the six year anniversary of the Closing, the Company shall, and Acquiror shall cause the Transferred Entities to, indemnify, defend and hold harmless each Person person who is now, or has been at any time prior to the date of this Agreement hereof or who becomes prior to the ClosingEffective Time, a an officer or director of the Company or officer of any Transferred Entity or is or was serving at the request of a Transferred Entity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise Subsidiary (the “"Indemnified Persons”Parties") against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ , fees and expenses), liabilities or judgments or amounts that are paid in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is a party claim, action, suit, proceeding or is otherwise involved (including as a witness) based, investigation based in whole or in part, part on or arising, arising in whole or in part, part out of the fact that such Person person is or was a director or officer of a Transferred Entity the Company or is or was serving at the request of a Transferred Entity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacitySubsidiary, whether pertaining to any act matter existing or omission occurring or existing prior to, at or after prior to the Closing Effective Time and whether asserted or claimed prior to, or at or after after, the Closing Effective Time (“"Indemnified Liabilities”"), including including, without limitation, all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, to this Agreement or the Transactionstransactions contemplated hereby, in each case, case to the fullest extent a corporation is permitted under applicable Law (and law to indemnify its own directors or officers, as the Company shallcase may be; provided, however, that all right to indemnification in respect of any claim asserted or made within such period shall cause a Transferred Entity to, pay expenses incurred in connection therewith in advance of continue until the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law)claim. Without limiting the foregoing, in In the event any such Proceeding is brought or threatened to be brought against any of an Indemnified Persons (whether arising before or after the Closing)Liability, (i) Acquiror shall pay the Indemnified Persons may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to them, and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses of such counsel for selected by the Indemnified Persons as Parties, which counsel shall be reasonably satisfactory to Acquiror, promptly as after statements therefor accompanied by reasonable supporting documentation are received and otherwise advance to such Indemnified Party upon request reimbursement of documented expenses reasonably incurred, in either case to the extent not prohibited by applicable law and upon receipt of any affirmation and undertaking required by applicable law, (ii) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist Acquiror will cooperate in the defense of any such matter. Any matter and (iii) any determination required to be made with respect to whether an Indemnified Person wishing Party's conduct complies with the standards set forth under applicable law shall be made by independent counsel mutually acceptable to claim indemnification or advancement of expenses under this Section 8.6Acquiror and the Indemnified Party; provided, upon learning of any such Proceedinghowever, shall notify the Company or the applicable Transferred Entity (but the failure so to notify that Acquiror shall not relieve be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld) and that Acquiror shall be liable for the Company from any obligations that it may have under this Section 8.6 fees and expenses of only one law firm for all Indemnified Parties with respect to each related matter except to the extent such failure materially prejudices there is, in the Company’s position with respect opinion of counsel to such claims). With respect to an Indemnified Party, under applicable standards of professional conduct, a conflict on any determination significant issue between positions of whether any two or more Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (3) yearsParties.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (SPS Technologies Inc), Agreement and Plan of Merger (SPS Technologies Inc), Agreement and Plan of Merger (Magnetic Technologies Corp)
Indemnification of Directors and Officers. SECTION 1. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended (abut, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), any person (a “Covered Person”) Without limiting who was or is a party or is threatened to be made a party to, or is otherwise involved in, any other rights that any Indemnified Person may have pursuant to any employment agreement threatened, pending or indemnification agreement completed action, suit or proceeding, whether civil, criminal, administrative or investigative in effect on the date hereof or otherwisenature (a “proceeding”), from the Closing and until the six year anniversary by reason of the Closing, the Company shall, and shall cause the Transferred Entities to, indemnify, defend and hold harmless each Person who is nowfact that such Covered Person, or has been a person for whom he or she is the legal representative, is or was, at any time during which these Bylaws are in effect or any time prior thereto (whether or not such Covered Person continues to serve in such capacity at the date time any indemnification or payment of this Agreement expenses pursuant hereto is sought or who becomes prior to at the Closingtime any proceeding relating thereto exists or is brought), a director or officer of the Corporation (including, for the purposes of this Article XIII, any Transferred Entity predecessor of the Corporation absorbed by the Corporation in a consolidation, merger or reorganization), or has or had agreed to become a director or officer of the Corporation, or while a director or officer of the Corporation is or was serving at the request of the Corporation as a Transferred Entity director, officer, trustee, employee or agent of another corporation, limited liability company, partnership, joint venture, employee benefit plan, trust, nonprofit entity or other enterprise, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, trustee, employee or agent or in any other capacity while serving as a director, officer, trustee, employee or agent, against all liability and loss suffered (including, without limitation, any judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) and expenses (including attorneys’ fees and disbursements), actually and reasonably incurred by such Covered Person in connection with such proceeding to the fullest extent permitted by law, and such indemnification shall continue as to a person who has ceased to be a director, officer, trustee, employee or agent and shall inure to the benefit of such person’s heirs, executors and administrators, and the Corporation may enter into agreements with any such person for the purpose of providing for such indemnification. For purposes of this Article XIII, a director or officer of the Corporation serving as a director, officer, trustee, employee or agent or in any other capacity (a) at a company of which the Corporation owns, directly or indirectly, a majority of the shares or other interests entitled to vote in the election of its directors or the members of a comparable governing body or (ii) at an employee benefit plan of the Corporation or of any such company described in clause (a) shall be deemed to have served in such capacity at the request of the Corporation. Except as otherwise provided in this Article XIII, and other than proceedings to enforce rights conferred by the Certificate of Incorporation or this Article XIII, the Corporation shall be required to indemnify a person in connection with a proceeding (or part thereof) initiated by such person only if the proceeding (or part thereof) was authorized by the Board of Directors. The right to indemnification conferred in this Article XIII shall include the right to be paid by the Corporation the expenses (including attorneys’ fees) incurred by a Covered Person in defending any such proceeding in advance of its final disposition, such advances to be paid by the Corporation within sixty (60) days after the receipt by the Corporation of a statement or statements from the claimant requesting such advance or advances from time to time (and subject to filing a written request for indemnification pursuant to the following paragraph of Section 1 of this Article XIII); provided, however, that the payment of such expenses incurred by a director or officer (or a former director or officer) in such person’s capacity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or (and not in any other enterprise (the “Indemnified Persons”) against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid capacity in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is a party service was or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that rendered by such Person is or was person while a director or officer officer, including, without limitation, service to an employee benefit plan) shall be made only upon receipt of a Transferred Entity an undertaking by or on behalf of the Covered Person to repay all amounts advanced if it shall ultimately be determined by final judicial decision from which there is no further right of appeal that the Covered Person is not entitled to be indemnified by the Corporation for such expenses under this Article XIII or was serving otherwise. The rights conferred upon Covered Persons in this Article XIII shall be contract rights that vest at the time of such person’s service to or at the request of the Corporation and such rights shall continue as to a Transferred Entity Covered Person who has ceased to be a director, officer, trustee, employee or agent and shall inure to the benefit of the indemnitee’s heirs, executors and administrators. To obtain advancement or indemnification under this Article XIII, a claimant shall submit to the Corporation a written request, including therein or therewith such documentation and information as is reasonably available to the claimant and is reasonably necessary to determine whether and to what extent the claimant is entitled to advancement or indemnification. Upon written request by a director or officer of another corporationclaimant for indemnification pursuant to the immediately preceding sentence, partnershipa determination, limited liability companyif required by applicable law, joint venturewith respect to the claimant’s entitlement thereto shall be made as follows: (1) if requested by the claimant, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing Independent Counsel (“Indemnified Liabilities”as hereinafter defined), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or (2) if no request is made by the Transactions, in each case, to the fullest extent permitted under applicable Law (and the Company shall, or shall cause claimant for a Transferred Entity to, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Closing)determination by Independent Counsel, (i) by a majority vote of the Indemnified Persons may retain any Parent Party’s Disinterested Directors (or as hereinafter defined) even though less than a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to themquorum, and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received and (ii) the Company shallby a committee of Disinterested Directors designated by a majority of such directors, and shall cause the Transferred Entities toeven though less than a quorum, use their respective reasonable best efforts to assist or (iii) if there are no Disinterested Directors, or if such Disinterested Directors so direct, by Independent Counsel in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Entity (but the failure so to notify shall not relieve the Company from any obligations that it may have under this Section 8.6 except a written opinion to the extent such failure materially prejudices Board of Directors, a copy of which shall be delivered to the Company’s position with respect to such claims)claimant, or (iv) by the stockholders of the Corporation. With respect to any In the event the determination of whether any Indemnified Person entitlement to indemnification is to be made by Independent Counsel at the request of the claimant, the Independent Counsel shall be selected by the Board of Directors unless there shall have occurred within two (2) years prior to the date of the commencement of the action, suit or proceeding for which indemnification is claimed a “Change of Control” (as defined below), in which case the Independent Counsel shall be selected by the claimant unless the claimant shall request that such selection be made by the Board of Directors. If it is so determined that the claimant is entitled to indemnification by indemnification, payment to the Company or a Transferred Entity under this Section 8.6, such Indemnified Person claimant shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company within sixty (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (360) years.days after such
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Brookfield Property Partners L.P.), Agreement and Plan of Merger (Brookfield Asset Management Inc.), Agreement and Plan of Merger (GGP Inc.)
Indemnification of Directors and Officers. (a) Without limiting any other rights that any Indemnified Person may have pursuant to any employment agreement or indemnification agreement in effect on From and after the date hereof or otherwiseEffective Time, from Parent and the Closing Surviving Entity will jointly and until the six year anniversary of the Closing, the Company shall, and shall cause the Transferred Entities to, severally indemnify, defend and hold harmless each the present and former officers, directors and employees of the Company and any of its Subsidiaries, and any Person who is nowor was serving at the request of the Company as an officer, director or employee or agent of another Person (each, an "Indemnified Party" and together, the "Indemnified Parties") (and will also, subject to Section 6.10(b), advance expenses as incurred to the fullest extent permitted under the DGCL, provided that 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), against (i) all losses, costs, expenses, claims, damages, judgments or liabilities arising out of, or has been at in connection with, any time prior to claim, action, suit, proceeding or investigation based in whole or in part on the date of this Agreement fact that the Indemnified Party is or who becomes prior to the Closingwas an officer, a director or officer employee of the Company or any Transferred Entity of its Subsidiaries, or is or was serving at the request of a Transferred Entity the Company as a an officer, director or officer employee or agent of another corporationPerson, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is a party or is otherwise involved (including as a witness) 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 a Transferred Entity or is or was serving at the request of a Transferred Entity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act matter existing or omission occurring before or existing prior to, at or after the Closing Effective Time and whether asserted or claimed prior tobefore, at or after after, the Closing Effective Time (“the "Indemnified Liabilities”), including ") and (ii) all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining toto this Agreement, this Agreement the Offer, the Merger or the Transactionsany other transactions contemplated hereby or thereby, in each case, case to the fullest extent permitted under applicable Law the DGCL (notwithstanding the charter, bylaws or similar organizational documents of the Company, the Surviving Entity or Parent); provided, however, that such indemnification will be provided only to the extent any directors' and officers' liability insurance policy of the Company or its Subsidiaries does not provide coverage and actual payment thereunder with respect to the matters that would otherwise be subject to indemnification hereunder (it being understood that Parent or the Surviving Entity shall, subject to Section 6.10(b), advance expenses on a current basis as provided in this paragraph (a) notwithstanding such insurance coverage to the extent that payments thereunder have not yet been made, in which case Parent or the Surviving Entity, as the case may be, shall be entitled to repayment of such advances from the proceeds of such insurance coverage). Parent and Merger Sub agree that all rights to indemnification, including provisions relating to advances of expenses incurred in defense of any action, suit or proceeding, whether civil, criminal, administrative or investigative (each, a "Claim"), existing in favor of the Indemnified Parties as provided in the Company Charter or Company Bylaws or pursuant to other agreements, or certificates of incorporation or bylaws or similar documents of any Subsidiaries of the Company, as in effect as of the date hereof, with respect to matters occurring through the Effective Time, will survive the Merger and will continue in full force and effect. The Surviving Entity shall, and Parent shall cause a Transferred the Surviving Entity to, pay expenses incurred maintain in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or effect for not less than three years after the Closing)Effective Time the current policies of directors' and officers' liability insurance maintained by the Company and the Company's Subsidiaries with respect to matters occurring prior to or at the Effective Time; provided, however, that (i) the Indemnified Persons Surviving Entity may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory substitute therefor policies of at least the same coverage containing terms and conditions which are no less advantageous to them, and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received Parties with an insurance company or companies, the claims paying ability of which is substantially equivalent to the claims paying ability of the insurance company or companies providing currently such insurance coverage for directors and officers of the Company, and (ii) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Surviving Entity (but the failure so to notify shall not relieve the Company from any obligations that it may have under this Section 8.6 except to the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services required to pay an annual premium for the Company or the Indemnified Person within such insurance in excess of three times the last three (3) yearsannual premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (On Command Corp), Agreement and Plan of Merger (Ascent Entertainment Group Inc), Agreement and Plan of Merger (Liberty Media Corp /De/)
Indemnification of Directors and Officers. (a) Without limiting After the Effective Time, without releasing any other rights that any Indemnified Person may have pursuant to any employment agreement or indemnification agreement insurance carrier and after exhaustion of all applicable director and liability insurance coverage for Integrity and its directors and officers, FNB shall indemnify, hold harmless and defend the directors and officers of Integrity in effect office on the date hereof or otherwisethe Effective Time, to the same extent as it indemnifies its own directors and officers, from and against any and all claims, disputes, demands, causes of action, suits, proceedings, losses, damages, liabilities, obligations, costs and expenses of every kind and nature including, without limitation, reasonable attorneys’ fees and legal costs and expenses therewith whether known or unknown and whether now existing or hereafter arising which may be threatened against, incurred, undertaken, received or paid by such persons in connection with or which arise out of or result from or are based upon any action or failure to act by such person in the Closing and until the six year anniversary ordinary scope of the Closing, the Company shall, and shall cause the Transferred Entities to, indemnify, defend and hold harmless each Person who is now, his duties as a director or has been at any time prior to the date officer of this Agreement or who becomes prior to the Closing, Integrity (including service as a director or officer of any Transferred Entity Integrity subsidiary or fiduciary of any of the Integrity Plans (as defined in Section 2.23(a)) through the Effective Time; provided, however, that FNB shall not be obligated to indemnify such person for (i) any act not available for statutory or permissible indemnification under North Carolina law, (ii) any penalty, decree, order, finding or other action imposed or taken by any regulatory authority, (iii) any violation or alleged violation of federal or state securities laws to the extent that indemnification is prohibited by law, or was serving at (iv) any claim of sexual or other unlawful harassment, or any form of employment discrimination prohibited by federal or state law; further, provided, however, that (A) FNB shall have the request of a Transferred Entity as a right to assume the defense thereof and upon such assumption FNB shall not be liable to any director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust Integrity for any legal expenses of other counsel or any other enterprise (the “Indemnified Persons”) against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities subsequently incurred by such director or judgments or amounts that are paid in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred officer in connection with any threatened the defense thereof, except that if FNB elects not to assume such defense or actual Proceeding to which counsel for such Indemnified Person is a party or is otherwise involved (including as a witness) 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 a Transferred Entity or is or was serving at the request of a Transferred Entity as a reasonably advises such director or officer that there are issues which raise conflicts of another corporationinterest between FNB and such director or officer, partnership, limited liability company, joint venture, Employee Benefit Plan, trust such director or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and the Company shall, or shall cause a Transferred Entity to, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Closing), (i) the Indemnified Persons officer may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel reasonably satisfactory to themhim, and FNB shall pay the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received and counsel, (iiB) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Entity (but the failure so to notify shall not relieve the Company from any obligations that it may have under this Section 8.6 except to the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval FNB shall not be unreasonably withheld or delayed)liable for any settlement effected without its prior written consent, and who has not otherwise performed material services (C) FNB shall have no obligation hereunder to any director or officer of Integrity when and if a court of competent jurisdiction shall determine that indemnification of such director or officer in the manner contemplated hereby is prohibited by applicable law. The indemnification provided herein shall be in addition to any indemnification rights an indemnitee may have by law, pursuant to the charter or bylaws of Integrity or any of its subsidiaries or pursuant to any Plan for which the Company or the Indemnified Person within the last three (3) yearsindemnity serves as a fiduciary.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Integrity Financial Corp), Agreement and Plan of Merger (FNB Corp/Nc)
Indemnification of Directors and Officers. (a) Without limiting any other rights that any Indemnified Person may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from the Closing and until the six year anniversary of the Closing, the Company shall, and Parent shall cause the Transferred Entities Surviving Corporation to, (i) indemnify, defend and hold harmless each Person any person who is now, or has been at any time prior to the date of this Agreement hereof, or who becomes prior to the ClosingEffective Time, a director or officer of the Company or any Transferred Entity of its present or former Subsidiaries (the “Indemnified Party”) to the same extent such persons are indemnified as of the date of this Agreement by the Company pursuant to the Company’s certificate of incorporation and the Company’s by-laws against all losses, claims, damages, liabilities, costs and expenses (including attorneys’ fees and expenses), judgments, fines, losses, and amounts paid in settlement in connection with any actual or threatened action, suit, claim, proceeding or investigation (each, a “Claim”) to the extent that any such Claim is based on, or arises out of, the fact that such person is or was a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of a Transferred Entity the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (enterprise, in each case to the “Indemnified Persons”) against all lossesextent that any such Claim pertains to any matter or fact arising, claims, damages, costs, fines, penalties, expenses existing or occurring prior to or at the Effective Time (including attorneys’ and other professionals’ fees and expensesto the extent that any such Claim is based on, or arises out of this Agreement or any of the transactions contemplated hereby), liabilities or judgments or amounts that are paid in settlement (with the approval regardless of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred in connection with any threatened or actual Proceeding to which whether such Indemnified Person Claim is a party or is otherwise involved (including as a witness) 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 a Transferred Entity or is or was serving at the request of a Transferred Entity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”)Effective Time, including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, other than in each casecase for Claims judicially determined to involve a willful breach of this Agreement, and (ii) advance to such Indemnified Party its fees and expenses (including attorneys’ fees) periodically and promptly upon request to the fullest extent permitted under applicable Law (the certificate of incorporation and bylaws of the Company as of the date hereof, subject to the provision by such Indemnified Party of an undertaking to reimburse the amounts so advanced in the event of a determination by a court of competent jurisdiction that such Indemnified Party is not entitled thereto. Parent and the Company shall, or shall cause a Transferred Entity to, pay expenses incurred agree that all rights to indemnification and all limitations of liability existing in connection therewith favor of any Indemnified Party as provided in advance the Company’s certificate of incorporation and by-laws and indemnification agreements as in effect as of the final disposition date hereof shall survive the Merger and shall continue in full force and effect for a period of any such Proceeding six years from the Effective Time unless otherwise required by Law. In addition, until six years from the Effective Time, unless otherwise required by applicable Law, the certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions no less favorable with respect to each indemnification of the Indemnified Person Parties for actions or omissions occurring at or prior to the fullest extent permitted under applicable Law)Effective Time than those set forth in the certificate of incorporation and bylaws of the Company on the date of this Agreement. Without limiting Notwithstanding the foregoingsix-year period specified in the foregoing sentences, in the event any Claim or Claims are asserted or made within such Proceeding is brought or threatened six-year period, all rights to be brought against any Indemnified Persons (whether arising before or after the Closing), (i) the Indemnified Persons may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to them, and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses indemnification in respect of such counsel for Claim or Claims shall continue until the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received and (ii) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Entity (but the failure so to notify shall not relieve the Company from any obligations that it may have under this Section 8.6 except to the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (3) yearsdisposition thereof.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Molex Inc), Agreement and Plan of Merger (Molex Inc)
Indemnification of Directors and Officers. (a) Without limiting In the event of any other rights that threatened or actual claim, action, suit, demand, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any Indemnified Person may have pursuant to such claim, action, suit, demand, proceeding or investigation in which any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from the Closing and until the six year anniversary of the Closing, the Company shall, and shall cause the Transferred Entities to, indemnify, defend and hold harmless each Person person who is now, or has been at any time prior to the date of this Agreement hereof, or who becomes prior to the ClosingEffective Time, a director director, officer, employee, fiduciary or officer agent of the Company or any Transferred Entity Subsidiary of the Company (the "Indemnified Parties") is, or is or was serving at the request of a Transferred Entity as a director or officer of another corporationthreatened to be, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is made a party or is otherwise involved (including as a witness) 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 a Transferred Entity or is or was serving at the request of a Transferred Entity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining toto (i) the fact that he is or was a director, officer, employee, fiduciary or agent of the Company or any Subsidiary of the Company, or is or was serving at the request of the Company or any Subsidiary of the Company as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise or (ii) the negotiation, execution or performance of this Agreement or any of the Transactionstransactions contemplated hereby, whether in each caseany case asserted or arising before or after the Effective Time, the parties hereto agree to cooperate and use their commercially reasonable efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time, Parent shall cause the Surviving Corporation to, and the Surviving Corporation shall, indemnify and hold harmless, as and to the fullest full extent permitted under by applicable Law Law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, demand, proceeding or investigation (whether asserted or arising before or after the Effective Time), (A) the Company, and after the Effective Time, Parent shall cause the Surviving Corporation to, and the Company Surviving Corporation shall, or shall cause a Transferred Entity to, promptly pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding claim, suit, proceeding or investigation to each Indemnified Person Party to the fullest full extent permitted under applicable Law). Without limiting by law, subject to the foregoing, provision by such Indemnified Party of an undertaking to reimburse the amounts so advanced in the event any of a final non-appealable determination by a court of competent jurisdiction that such Proceeding Indemnified Party is brought or threatened not entitled to be brought against any Indemnified Persons (whether arising before or after the Closing)such amounts, (iB) the Indemnified Persons Parties may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other one counsel satisfactory to themthem (except in case of a conflict of interest among two or more Indemnified Parties, in which case more than one counsel may be retained), and the Company shallCompany, or and after the Effective Time, Parent shall cause a Transferred Entity the Surviving Corporation to, and the Surviving Corporation shall, pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as Parties within 30 days after statements therefor accompanied by reasonable supporting documentation are received and (iiC) the Company shalland the Surviving Corporation will, and shall Parent will cause the Transferred Entities Surviving Corporation to, use their respective commercially reasonable best efforts to assist in the defense of any such matter; provided that neither the Company nor the Surviving Corporation shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided further, that the Surviving Corporation shall have no obligation hereunder to any Indemnified Party when and if, but only to the extent that, 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 the manner contemplated hereby is prohibited by applicable law. Any Indemnified Person Party wishing to claim indemnification or advancement of expenses under this Section 8.66.7, upon learning of any such Proceedingclaim, action, suit, demand, proceeding or investigation, shall notify the Company or and, after the applicable Transferred Entity (but Effective Time, the Surviving Corporation, thereof; provided, that the failure to so to notify shall not relieve affect the obligations of the Company from any obligations that it may have under this Section 8.6 and the Surviving Corporation except to the extent such failure to notify materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (3) yearsparty.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Chorus Communications Group LTD)
Indemnification of Directors and Officers. Pursuant to Article VI, Section 1 of IFF’s Bylaws, as they may be amended (a) Without limiting the “IFF Bylaws”), IFF has agreed to indemnify any other rights that any Indemnified Person may have pursuant person made, or threatened to any employment agreement be made, a party to an action or indemnification agreement in effect on the date hereof proceeding, whether civil or otherwisecriminal, from the Closing and until the six year anniversary by reason of the Closing, the Company shall, and shall cause the Transferred Entities to, indemnify, defend and hold harmless each Person who is nowfact that he or she, or has been at any time prior to a person of whom he or she is the date of this Agreement legal representative, is or who becomes prior to the Closing, was a director or officer of IFF, or was serving, at the request of IFF, as a director, officer, employee, fiduciary or agent of any Transferred Entity other affiliated corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorney’s fees, incurred by such person as a result of such action or proceeding, or any appeal therein, unless a judgment or other final adjudication adverse to such person establishes that his or her acts, or the acts of the person of whom he or she is the legal representative, were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he or she, or the person of whom he or she is the legal representative, personally gained in fact a financial profit or other advantage to which he or she, or the other person of whom he or she is the legal representative, was not legally entitled. The IFF Bylaws provide that IFF shall advance to such person funds to pay for such expenses, including attorney’s fees, incurred by such person in defending against any such action or proceeding, or any appeal therein, upon receipt of an undertaking by or on behalf of such person to repay such funds to IFF if a judgment or other final adjudication adverse to such person establishes that his or her acts, or the acts of the person of whom he or she is the legal representative, were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he or she, or the person of whom he or she is the legal representative, personally gained in fact a financial profit or other advantage to which he or she, or such person, was not legally entitled. Article VI, Section 2 of the IFF Bylaws provides that if a claim under Article VI, Section 1 of the IFF Bylaws is not paid in full by IFF within thirty (30) days after a written claim has been received by IFF, the claimant may at any time thereafter bring suit against IFF to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expenses of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to IFF) that the claimant, or the person of whom he or she is the legal representative, has not met the standard of conduct established in Article VI, Section 1 of the IFF Bylaws, but the burden of proving such defense shall be on IFF. Neither the failure of IFF (including IFF’s board of directors, independent legal counsel, or its shareholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper because the claimant or such person has met the said standard of conduct, nor an actual determination by IFF (including IFF’s board of directors, independent legal counsel, or its shareholders) that the claimant or such person has not met such applicable standard of conduct, shall be a defense to action or create a presumption that the claimant or such person has not met such standard of conduct. Article VI, Section 3 of the IFF Bylaws provides that subject to the limitations contained in Article VI, Section 1 of the IFF Bylaws, the right to indemnification and the payment of expenses conferred under the IFF Bylaws shall not be deemed exclusive of any other right to which any person seeking indemnification or advancement or payment of expenses may be entitled. Article VI, Section 6 of the IFF Bylaws also provides that IFF may purchase and maintain insurance to indemnify officers, directors and others against costs or liabilities incurred by them in connection with the performance of their duties and any activities undertaken by them for, or at the request of, IFF, to the fullest extent permitted by the New York Business Corporation Law (the “NYBCL”). Section 721 of the NYBCL provides, among other things, that indemnification pursuant to the NYBCL will not be deemed exclusive of other indemnification rights to which a director or officer may be entitled, provided that no indemnification may be made if a judgment or other final adjudication adverse to the director or officer establishes that (i) his or her acts were committed in bad faith or were the result of active and deliberate dishonesty, and, in either case, were material to the cause of action so adjudicated, or (ii) he or she personally gained in fact a financial profit or other advantage to which he or she was not legally entitled. Section 722(a) of the NYBCL provides, among other things, that a corporation may indemnify a person made, or threatened to be made, a party to any civil or criminal action or proceeding, other than an action by or in the right of the corporation to procure judgment in its favor, but including an action by or in the right of any other corporation or entity which any director or officer served in any capacity at the request of the corporation, by reason of the fact that he or she or his or her testator or intestate was a director or officer of the corporation or served such other entity in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys’ fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, if such director or officer acted, in good faith, for a purpose which he or she reasonably believed to be in, or, in the case of service to any other entity, not opposed to, the best interests of the corporation and, in criminal actions or proceedings, in addition, had no reasonable cause to believe that his conduct was unlawful. With respect to actions by or in the right of the corporation to procure judgment in its favor, Section 722(c) of the NYBCL provides that a person who is or was a director or officer of the corporation or who is or was serving at the request of a Transferred Entity the corporation as a director or officer of another corporationany other corporation or entity may be indemnified against amounts paid in settlement and reasonable expenses, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ fees, actually and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or necessarily incurred in connection with the defense or settlement of such an action, or any appeal therein, if such director or officer acted, in good faith, for a purpose which he or she reasonably believed to be in, or, in the case of service to any other entity, not opposed to, the best interests of the corporation and that no indemnification may be made in respect of (i) a threatened action, or actual Proceeding a pending action which is settled or otherwise disposed of, or (ii) any claim, issue or matter as to which such Indemnified Person person has been adjudged to be liable to the corporation, unless and to the extent an appropriate court determines that the person is a party fairly and reasonably entitled to partial or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out full indemnification. Section 723 of the fact NYBCL specifies, among other things, the manner in which the corporation may authorize payment of such indemnification. It provides that such Person is or was a director or officer who has been successful, whether on the merits or otherwise, in defending an action or proceeding of the character described in Section 722 of the NYBCL, shall be entitled to indemnification by the corporation. Except as provided in the preceding sentence, indemnification may be made by the corporation only if authorized in the specific case by one of the corporate actions set forth in Section 723 (unless ordered by a Transferred Entity or is or was serving at court under Section 724 of the request NYBCL). Section 724 of a Transferred Entity as the NYBCL provides, among other things, that upon proper application by a director or officer officer, indemnification shall be awarded by a court to the extent authorized under Sections 722 and 723(a) of another corporationthe NYBCL. Section 725 of the NYBCL contains, partnershipamong other things, limited certain other miscellaneous provisions affecting the indemnification of directors and officers, including provision for the return of amounts paid as indemnification if any such person is ultimately found not to be entitled to the indemnification. Section 726(a) of the NYBCL authorizes the purchase and maintenance of insurance to indemnify (i) a corporation for any obligation which it incurs as a result of the indemnification of directors and officers under the above sections, (ii) directors and officers in instances in which they may be indemnified by a corporation under such sections, and (iii) directors and officers in instances in which they may not otherwise be indemnified by a corporation under such sections, provided the contract of insurance covering such directors and officers provides, in a manner acceptable to the New York State Superintendent of Insurance, for a retention amount and for co-insurance. In addition, Section 402(b) of the NYBCL provides that a corporation may include a provision in its certificate of incorporation eliminating or limiting the liability companyof its directors to the corporation or its shareholders for damages for the breach of any duty, joint ventureexcept for a breach involving bad faith, Employee Benefit Planintentional misconduct, trust a knowing violation of law or receipt of an improper personal benefit or for certain illegal dividends, loans or stock repurchases. Article Eleven of IFF’s Restated Certificate of Incorporation, as it may be amended (the “Charter”) contains such a provision. Further, IFF maintains insurance policies that insure its officers and directors against certain liabilities. IFF has also entered into agreements with certain of its directors and officers that will require IFF, among other enterprise or things, to indemnify them against certain liabilities that may arise by reason of anything done their status or not done by such Person in any such capacity, whether pertaining to any act service as directors or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, officers to the fullest extent permitted under applicable Law (by law. In addition, consistent with the terms and conditions of the Plan, to the maximum extent permitted by law, no member of the committee responsible for administering these awards, nor any person to whom duties have been delegated to administer these awards, shall be liable to any person for any action taken or omitted in connection with the interpretation and administration of the awards, except for the willful misconduct or gross negligence of such member or person. The foregoing summaries are necessarily subject to the complete text of the NYBCL, the IFF Charter, the IFF Bylaws and the Company shall, or shall cause a Transferred Entity to, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Closing), (i) the Indemnified Persons may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to them, Plan and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees arrangements referred to above and expenses of such counsel for the Indemnified Persons as promptly as statements therefor accompanied are qualified in their entirety by reasonable supporting documentation are received and (ii) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Entity (but the failure so to notify shall not relieve the Company from any obligations that it may have under this Section 8.6 except to the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (3) yearsreference thereto.
Appears in 1 contract
Samples: Rsu Inducement Award Agreement
Indemnification of Directors and Officers. (a) Without limiting any other rights that any Indemnified Person may have pursuant to any employment agreement or indemnification agreement in effect on From and after the date hereof or otherwiseEffective Time, from the Closing and until the six year anniversary of the Closing, the Company Parent shall, and shall cause the Transferred Entities to, Surviving Corporation to indemnify, defend and hold harmless each Person any person who is now, or has been at any time prior to the date of this Agreement hereof, or who becomes prior to the ClosingEffective Time an officer, director, employee or agent (the "INDEMNIFIED PARTY") of the Company or its Subsidiaries (i) to the fullest extent permitted under Delaware Law, to the same extent such persons are indemnified as of the date of this Agreement by the Company pursuant to the Company's certificate of incorporation and the Company by-laws and indemnification agreements, if any, in existence on the date of this Agreement with any directors and officers of the Company against all losses, claims, damages, liabilities, costs and expenses (including attorneys' fees and expenses), judgments, fines, losses, and amounts paid in settlement in connection with any actual or threatened action, suit, claim, proceeding or investigation (each a director "CLAIM") to the extent that any such Claim is based on, or officer arises out of, the fact that such person is or was a director, officer, employee or agent of the Company or any Transferred Entity of its Subsidiaries or is or was serving at the request of a Transferred Entity the Company or any of its Subsidiaries as a director director, officer, employee or officer agent of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise enterprise, and (ii) without limitation to clause (i), to the “Indemnified Persons”) against all lossesfullest extent permitted under Delaware Law, claimsin each case to the extent that any such Claim pertains to any matter or fact arising, damages, costs, fines, penalties, expenses existing or occurring prior to or at the Effective Time (including attorneys’ and other professionals’ fees and expensesto the extent that any such Claim is based on, or arises out of this Agreement or any of the transactions contemplated hereby), liabilities or judgments or amounts that are paid in settlement (with the approval regardless of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred in connection with any threatened or actual Proceeding to which whether such Indemnified Person Claim is a party or is otherwise involved (including as a witness) 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 a Transferred Entity or is or was serving at the request of a Transferred Entity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”)Effective Time, including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, other than in each case, case for Claims judicially determined to the fullest extent permitted under applicable Law (and the Company shall, or shall cause involve a Transferred Entity to, pay expenses incurred in connection therewith in advance wilful breach of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law)this Agreement. Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against Indemnified Party becomes involved in any Indemnified Persons (whether arising before or capacity in any Claim, then from and after the Closing)Effective Time, (i) the Indemnified Persons may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to them, and the Company shall, or shall cause a Transferred Entity the Surviving Corporation to, pay all reasonable fees advance periodically and promptly upon a request therefor to such Indemnified Party its legal and other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to the provision by such counsel for Indemnified Party of an undertaking to reimburse the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received and (ii) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist amounts so advanced in the defense event of any such matter. Any Indemnified Person wishing to claim indemnification or advancement a determination by a court of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Entity (but the failure so to notify shall not relieve the Company from any obligations competent jurisdiction that it may have under this Section 8.6 except to the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall Party is not be unreasonably withheld or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (3) yearsentitled thereto.
Appears in 1 contract
Indemnification of Directors and Officers. Each person who was or is made a party to or is threatened to be made a party to, witness or other participant in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a) Without limiting any other rights that any Indemnified Person may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwisea “Proceeding”), from the Closing and until the six year anniversary by reason of the Closing, the Company shall, and shall cause the Transferred Entities to, indemnify, defend and hold harmless each Person who fact that he or she is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Closing, was a director or officer of the Company (an “Indemnitee”), whether the basis of the Proceeding is alleged action in an official capacity as a director or officer or in any Transferred Entity other capacity while serving as a director or officer, shall be indemnified by the Company to the fullest extent authorized by the DGCL or other applicable state law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide before such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by Indemnitee in connection therewith; provided, however, the Company shall not indemnify any such Indemnitee in connection with a Proceeding (or part thereof) (i) initiated by such Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding or (ii) made on account of Indemnitee’s conduct which constitutes a breach of Indemnitee’s duty of loyalty to the Company or its stockholders, or is an act or omission not in good faith or which involves intentional misconduct or a knowing violation of the law. For purposes of this Section 6.1, a “director” or “officer” of the Company includes any person who (i) is or was a director or officer of the Company, (ii) is or was serving at the request of a Transferred Entity the Company as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise enterprise, or (the “Indemnified Persons”iii) against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is a party or is otherwise involved (including as a witness) 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 a Transferred Entity corporation that was a predecessor corporation of the Company or is or was serving of another enterprise at the request of a Transferred Entity as a director or officer of another such predecessor corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and the Company shall, or shall cause a Transferred Entity to, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Closing), (i) the Indemnified Persons may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to them, and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received and (ii) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Entity (but the failure so to notify shall not relieve the Company from any obligations that it may have under this Section 8.6 except to the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (3) years.
Appears in 1 contract
Indemnification of Directors and Officers. Each person who was or is made a party to or is threatened to be made a party to, witness or other participant in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a) Without limiting any other rights that any Indemnified Person may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwisea “Proceeding”), from the Closing and until the six year anniversary by reason of the Closing, the Company shall, and shall cause the Transferred Entities to, indemnify, defend and hold harmless each Person who fact that he or she is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Closing, was a director or officer of the Corporation (an “Indemnitee”), whether the basis of the Proceeding is alleged action in an official capacity as a director or officer or in any Transferred Entity other capacity while serving as a director or officer, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide before such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by Indemnitee in connection therewith; provided, however, the Corporation shall not indemnify any such Indemnitee in connection with a Proceeding (or part thereof) (i) initiated by such Indemnitee against the Corporation or any director or officer of the Corporation unless the Corporation has joined in or consented to the initiation of such Proceeding or (ii) made on account of Indemnitee’s conduct which constitutes a breach of Indemnitee’s duty of loyalty to the Corporation or its stockholders, or is an act or omission not in good faith which involves intentional misconduct or a knowing violation of the law. For purposes of this Section 6.1, a “director” or “officer” of the Corporation includes any person who (i) is or was a director or officer of the Corporation , (ii) is or was serving at the request of a Transferred Entity the Corporation as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise enterprise, or (the “Indemnified Persons”iii) against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is a party or is otherwise involved (including as a witness) 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 a Transferred Entity corporation that was a predecessor corporation of the Corporation or is or was serving of another enterprise at the request of a Transferred Entity as a director or officer of another such predecessor corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and the Company shall, or shall cause a Transferred Entity to, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Closing), (i) the Indemnified Persons may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to them, and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received and (ii) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Entity (but the failure so to notify shall not relieve the Company from any obligations that it may have under this Section 8.6 except to the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (3) years...
Appears in 1 contract
Indemnification of Directors and Officers. (a) Without limiting To the extent permitted by law, the Association shall indemnify any other rights that director or officer or former director or officer of the Association or any Indemnified Person person who may have pursuant to any employment agreement or indemnification agreement in effect on served at the date hereof or otherwise, from the Closing and until the six year anniversary request of the Closing, the Company shall, and shall cause the Transferred Entities to, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Closing, Association as a director or officer of another corporation, whether for profit or not for profit, against expenses (including attorney’s fees) or liabilities actually and reasonably incurred by him in connection with the defense of or as a consequence of any Transferred Entity threatened, pending or completed action, suit or proceeding (whether civil or criminal) in which he is made a party or was (or is threatened to be made) a party by reason of being or having been such director or officer, except in relation to matters as to which he shall be adjudged in such action, suit or proceeding to be liable for gross negligence or willful misconduct in the performance of a duty, or in relation to a proceeding by or for the right of the Association in which a director or officer was adjudged liable to the Association or in relation to a proceeding where a director or officer was adjudged liable on the basis that personal benefit was improperly received by that director or officer. The indemnification provided herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any statute, bylaw, agreement, vote of members or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. The Association may purchase and maintain insurance on behalf of any person who is or was a director, officer employee or agent of the Association, or is or was serving at the request of the Association as director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in such capacity, or arising out of his status as such, whether or not the Association would have the power to indemnify him against such liability. The Association’s indemnity of any person who is or was a Transferred Entity director or officer of the Association, or is or was serving at the request of the Association as a director or officer of the Association, or is or was serving at the request of the Association as a director or officer of another corporation, partnership, limited liability companyjoint venture, trust or other enterprise, shall be reduced by any amounts such person may collect as indemnification (i) under any policy of insurance purchased and maintained on his behalf by the Association of (ii) from such other corporation, partnership, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is a party or is otherwise involved (including as a witness) 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 a Transferred Entity or is or was serving at the request of a Transferred Entity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and the Company shall, or shall cause a Transferred Entity to, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Closing), (i) the Indemnified Persons may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to them, and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received and (ii) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Entity (but the failure so to notify shall not relieve the Company from any obligations that it may have under this Section 8.6 except to the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (3) yearsenterprise.
Appears in 1 contract
Samples: www.maxwellfarmsc.com
Indemnification of Directors and Officers. (a) Without limiting any other rights that any Indemnified Person may have pursuant to any employment agreement or indemnification agreement in effect on From and after the date hereof or otherwiseEffective Time, from Parent and the Closing Surviving Entity will jointly and until the six year anniversary of the Closing, the Company shall, and shall cause the Transferred Entities to, severally indemnify, defend and hold harmless each the present and former officers, directors and employees of the Company and any of its Subsidiaries, and any Person who is nowor was serving at the request of the Company as an officer, director or employee or agent of another Person (each, an "Indemnified Party" and together, the "Indemnified Parties") (and will also, subject to Section 6.10(b), advance expenses as incurred to the fullest extent permitted under the DGCL, provided that 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), against (i) all losses, costs, expenses, claims, damages, judgments or liabilities arising out of, or has been at in connection with, any time prior to claim, action, suit, proceeding or investigation based in whole or in part on the date of this Agreement fact that the Indemnified Party is or who becomes prior to the Closingwas an officer, a director or officer employee of the Company or any Transferred Entity of its Subsidiaries, or is or was serving at the request of a Transferred Entity the Company as a an officer, director or officer employee or agent of another corporationPerson, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is a party or is otherwise involved (including as a witness) 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 a Transferred Entity or is or was serving at the request of a Transferred Entity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act matter existing or omission occurring before or existing prior to, at or after the Closing Effective Time and whether asserted or claimed prior tobefore, at or after after, the Closing Effective Time (“the "Indemnified Liabilities”), including ") and (ii) all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining toto this Agreement, this Agreement the Offer, the Merger or the Transactionsany other transactions contemplated hereby or thereby, in each case, case to the fullest extent permitted under applicable Law the DGCL (notwithstanding the charter, bylaws or similar organizational documents of the Company, the Surviving Entity or Parent); provided, however, that such indemnification will be provided only to the extent any directors' and officers' liability insurance policy of the Company or its Subsidiaries does not provide coverage and actual payment thereunder with respect to the matters that would otherwise be subject to indemnification hereunder (it being understood that Parent or the Surviving Entity shall, subject to Section 6.10(b), advance expenses on a current basis as provided in this paragraph (a) notwithstanding such insurance coverage to the extent that payments thereunder have not yet been made, in which case Parent or the Surviving Entity, as the case may be, shall be entitled to repayment of such advances from the proceeds of such insurance coverage). Parent and Merger Sub agree that all rights to indemnification, including provisions relating to advances of expenses incurred in defense of any action, suit or proceeding, whether civil, criminal, administrative 40 or investigative (each, a "Claim"), existing in favor of the Indemnified Parties as provided in the Company Charter or Company Bylaws or pursuant to other agreements, or certificates of incorporation or bylaws or similar documents of any Subsidiaries of the Company, as in effect as of the date hereof, with respect to matters occurring through the Effective Time, will survive the Merger and will continue in full force and effect. The Surviving Entity shall, and Parent shall cause a Transferred the Surviving Entity to, pay expenses incurred maintain in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or effect for not less than three years after the Closing)Effective Time the current policies of directors' and officers' liability insurance maintained by the Company and the Company's Subsidiaries with respect to matters occurring prior to or at the Effective Time; provided, however, that (i) the Indemnified Persons Surviving Entity may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory substitute therefor policies of at least the same coverage containing terms and conditions which are no less advantageous to them, and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received Parties with an insurance company or companies, the claims paying ability of which is substantially equivalent to the claims paying ability of the insurance company or companies providing currently such insurance coverage for directors and officers of the Company, and (ii) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Surviving Entity (but the failure so to notify shall not relieve the Company from any obligations that it may have under this Section 8.6 except to the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services required to pay an annual premium for the Company or the Indemnified Person within such insurance in excess of three times the last three (3) yearsannual premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ascent Entertainment Group Inc)
Indemnification of Directors and Officers. The Corporation will, to the maximum extent and in the manner permitted by the General Corporation Law of Delaware (aas such law may from time to time be amended, but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights), indemnify each of its directors and officers (each such person sometimes referred to in this Section 6.1 as an “indemnitee”) Without limiting any other rights that any Indemnified Person may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwiseagainst Expenses (as herein defined), from the Closing and until the six year anniversary of the Closingjudgments, the Company shallfines, penalties, ERISA excise taxes, settlements, loss, liability, and shall cause the Transferred Entities toother amounts actually and reasonably incurred in connection with any Proceeding (as herein defined), indemnify, defend and hold harmless each Person who is now, arising by reason of such person’s Official Capacity (as herein defined) or has been at any time prior to the date anything done or not done in such person’s Official Capacity. For purposes of this Agreement or who becomes prior to the ClosingSection 6.1, a director or officer of the Corporation includes any Transferred Entity person (a) who is or was a director or officer of the Corporation, (b) who is or was serving at the request of a Transferred Entity the Corporation as a director director, officer, manager, member, partner, trustee, or officer other agent of another corporation, partnership, limited liability company, partnership, joint venture, Employee Benefit Plan, trust or other enterprise enterprise, or (the “Indemnified Persons”c) against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or who was a director or officer of a Transferred Entity corporation that was a predecessor corporation or is other entity of the Corporation or was serving of another enterprise at the request of a Transferred Entity such predecessor corporation or entity. Such indemnification will include the right to receive payment of any Expenses incurred by the indemnitee in connection with any Proceeding in advance of its final disposition, consistent with the provisions of applicable law as then in effect. The right of indemnification provided in this Section 6.1 will not be exclusive of any other rights to which those seeking indemnification may otherwise be entitled, and the provisions of this Section 6.1 will inure to the benefit of the heirs and legal representatives of any person entitled to indemnity under this Section 6.1 and will be applicable to Proceedings commenced or continuing after the adoption of this Section 6.1, whether arising from acts or omissions occurring before or after such adoption. In furtherance, but not in limitation of the foregoing provisions, the following procedures, presumptions and remedies will apply with respect to advancement of Expenses and the right to indemnification under this Section 6.1. Indemnitee will be entitled to indemnification and advancement against all Expenses reasonably incurred for serving as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or witness by reason of anything done or not done by such Person indemnitee’s Official Capacity in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and the Company shall, or shall cause a Transferred Entity to, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Closing), (i) the Indemnified Persons may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to them, and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received and (ii) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Entity (but the failure so to notify shall not relieve the Company from any obligations that it may have under this Section 8.6 except to the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person which indemnitee is entitled to indemnification by the Company or not a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (3) yearsparty.
Appears in 1 contract
Indemnification of Directors and Officers. (a) Without limiting any other rights that any Indemnified Person may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from the Closing and until the six year anniversary of the Closing, the Company shall, and shall cause the Transferred Entities to, indemnify, defend and hold harmless each Person Section 1. Each person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Closing, was a director or officer of any Transferred Entity the corporation, or is who serves or was serving may have served at the request of a Transferred Entity the corporation as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (including the “Indemnified Persons”heirs, executors, administrators or estate of such person) and who was or is a party or is threatened to be made a party to any threatened, pending or completed claim, action, suit or proceeding, whether criminal, civil, administrative or investigative, including appeals, shall be indemnified by the corporation as a matter of right to the full extent permitted or authorized by the Iowa Business Corporation Act, as it may from time to time be amended, against all losses, claims, damages, costs, fines, penalties, any expenses (including attorneys’ and other professionals’ fees and expensesfees), liabilities or judgments or judgments, fines and amounts that are paid in settlement (with the approval of the indemnifying partysettlement, which approval shall not be unreasonably withheld, delayed or conditioned), of or actually and reasonably incurred by him in connection with any threatened or actual Proceeding to which such Indemnified Person is a party or is otherwise involved (including his capacity as a witness) baseddirector or officer, in whole or in part, on or arising, in whole or in part, arising out of the fact that such Person his status as a director or officer. Each person who is or was a director an employee or officer agent of a Transferred Entity the corporation, or is who serves or was serving may have served at the request of a Transferred Entity the corporation as a director an employee or officer agent of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (including the heirs, executors, administrators or estate of such person) may, at the discretion of the Board, be indemnified by reason the corporation to the same extent as provided herein with respect to directors and officers of anything done the corporation. The corporation may, but shall not be obligated to, maintain insurance at its expense, to protect itself and any person who is or not done was a director, officer, employee or agent of the corporation, or is or was serving as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him and incurred by such Person him in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out ofof his status as such. The corporation may, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and the Company shall, or but shall cause a Transferred Entity not be obligated to, pay expenses incurred in connection therewith defending a civil or criminal action, suit or proceeding in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law)action, suit or proceeding. Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Closing), (i) the Indemnified Persons may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to them, and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor accompanied The indemnification provided by reasonable supporting documentation are received and (ii) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Entity (but the failure so to notify shall not relieve the Company from any obligations that it may have under this Section 8.6 except to the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval 16 shall not be unreasonably withheld exclusive of any other rights to which those seeking indemnification may be entitled as a matter of law or delayed)under the articles of incorporation, and who has not otherwise performed material services for the Company any agreement, vote of stockholders or the Indemnified Person within the last three (3) years.disinterested directors or otherwise
Appears in 1 contract
Indemnification of Directors and Officers. (a) Without limiting any other rights that any Indemnified Person may have pursuant to any employment agreement or indemnification agreement in effect on From and after the date hereof or otherwiseEffective Time, from Liberty and the Closing Surviving Entity will jointly and until the six year anniversary of the Closing, the Company shall, and shall cause the Transferred Entities to, severally indemnify, defend and hold harmless each the present and former officers, directors and employees of the Company and any of its Subsidiaries, and any Person who is nowor was serving at the request of the Company as an officer, director or employee or agent of another Person (each, an "Indemnified Party" and together, the "Indemnified Parties") (and will also, subject to Section 7.11(b), advance expenses as incurred to the fullest extent permitted under the DGCL, provided that 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), against (i) all losses, costs, expenses, claims, damages, judgments or liabilities arising out of, or has been at in connection with, any time prior to claim, action, suit, proceeding or investigation based in whole or in part on the date of this Agreement fact that the Indemnified Party is or who becomes prior to the Closingwas an officer, a director or officer employee of the Company or any Transferred Entity of its Subsidiaries, or is or was serving at the request of a Transferred Entity the Company as a an officer, director or officer employee or agent of another corporationPerson, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is a party or is otherwise involved (including as a witness) 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 a Transferred Entity or is or was serving at the request of a Transferred Entity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act matter existing or omission occurring before or existing prior to, at or after the Closing Effective Time and whether asserted or claimed prior tobefore, at or after after, the Closing Effective Time (“the "Indemnified Liabilities”), including ") and (ii) all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining toto this Agreement, this Agreement the Merger or the Transactionsany other transactions contemplated hereby or thereby, in each case, case to the fullest extent permitted under applicable Law the DGCL (notwithstanding the charter, bylaws or similar organizational documents of the Company, the Surviving Entity, Parent or Liberty); provided, however, that such indemnification will be provided only to the extent any directors' and officers' liability insurance policy of the Company or its Subsidiaries does not provide coverage and actual payment thereunder with respect to the matters that would otherwise be subject to indemnification hereunder (it being understood that Liberty or the Surviving Entity shall, subject to Section 7.11(b), advance expenses on a current basis as provided in this paragraph (a) notwithstanding such insurance coverage to the extent that payments thereunder have not yet been made, in which case Liberty or the Surviving Entity, as the case may be, shall be entitled to repayment of such advances from the proceeds of such insurance coverage). Liberty and Merger Sub agree that all rights to indemnification, including provisions relating to advances of expenses incurred in defense of any action, suit or proceeding, whether civil, criminal, administrative or investigative (each, a "Claim"), existing in favor of the Indemnified Parties as provided in the Company Charter or Company Bylaws or pursuant to other agreements, or certificates of incorporation or bylaws or similar documents of any Subsidiaries of the Company, as in effect as of the date hereof, with respect to matters occurring through the Effective Time, will survive the Merger and will continue in full force and effect. The Surviving Entity shall, and Liberty shall cause a Transferred the Surviving Entity to, pay expenses incurred maintain in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or effect for not less than three years after the Closing)Effective Time the current policies of directors' and officers' liability insurance maintained by the Company and the Company's Subsidiaries with respect to matters occurring prior to or at the Effective Time; provided, however, that (i) the Indemnified Persons Surviving Entity may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory substitute therefor policies of at least the same coverage containing terms and conditions which are no less advantageous to them, and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received Parties with an insurance company or companies, the claims paying ability of which is substantially equivalent to the claims paying ability of the insurance company or companies providing currently such insurance coverage for directors and officers of the Company, and (ii) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Surviving Entity (but the failure so to notify shall not relieve the Company from any obligations that it may have under this Section 8.6 except to the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services required to pay an annual premium for the Company or the Indemnified Person within such insurance in excess of three times the last three (3) yearsannual premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ascent Entertainment Group Inc)
Indemnification of Directors and Officers. (a) Without limiting any other rights that any Indemnified Person may have pursuant to any employment agreement or indemnification agreement in effect on From and after the date hereof or otherwiseEffective Time, from the Closing and until the six year anniversary of the Closing, the Company Parent shall, and shall cause the Transferred Entities to, Surviving Corporation to indemnify, defend and hold harmless each Person any person who is now, or has been at any time prior to the date of this Agreement hereof, or who becomes prior to the ClosingEffective Time an officer, director, employee or agent (the "Indemnified Party") of the Company or its Subsidiaries (i) to the fullest extent permitted under Delaware Law, to the same extent such persons are indemnified as of the date of this Agreement by the Company pursuant to the Company's certificate of incorporation and the Company by-laws and indemnification agreements, if any, in existence on the date of this Agreement with any directors and officers of the Company against all losses, claims, damages, liabilities, costs and expenses (including attorneys' fees and expenses), judgments, fines, losses, and amounts paid in settlement in connection with any actual or threatened action, suit, claim, proceeding or investigation (each a director "Claim") to the extent that any such Claim is based on, or officer arises out of, the fact that such person is or was a director, officer, employee or agent of the Company or any Transferred Entity of its Subsidiaries or is or was serving at the request of a Transferred Entity the Company or any of its Subsidiaries as a director director, officer, employee or officer agent of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise enterprise, and (ii) without limitation to clause (i), to the “Indemnified Persons”) against all lossesfullest extent permitted under Delaware Law, claimsin each case to the extent that any such Claim pertains to any matter or fact arising, damages, costs, fines, penalties, expenses existing or occurring prior to or at the Effective Time (including attorneys’ and other professionals’ fees and expensesto the extent that any such Claim is based on, or arises out of this Agreement or any of the transactions contemplated hereby), liabilities or judgments or amounts that are paid in settlement (with the approval regardless of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred in connection with any threatened or actual Proceeding to which whether such Indemnified Person Claim is a party or is otherwise involved (including as a witness) 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 a Transferred Entity or is or was serving at the request of a Transferred Entity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”)Effective Time, including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, other than in each case, case for Claims judicially determined to the fullest extent permitted under applicable Law (and the Company shall, or shall cause involve a Transferred Entity to, pay expenses incurred in connection therewith in advance wilful breach of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law)this Agreement. Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against Indemnified Party becomes involved in any Indemnified Persons (whether arising before or capacity in any Claim, then from and after the Closing)Effective Time, (i) the Indemnified Persons may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to them, and the Company shall, or shall cause a Transferred Entity the Surviving Corporation to, pay all reasonable fees advance periodically and promptly upon a request therefor to such Indemnified Party its legal and other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to the provision by such counsel for Indemnified Party of an undertaking to reimburse the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received and (ii) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist amounts so advanced in the defense event of any such matter. Any Indemnified Person wishing to claim indemnification or advancement a determination by a court of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Entity (but the failure so to notify shall not relieve the Company from any obligations competent jurisdiction that it may have under this Section 8.6 except to the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall Party is not be unreasonably withheld or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (3) yearsentitled thereto.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Packaging Dynamics Corp)
Indemnification of Directors and Officers. (a) Without limiting In the event of any other rights that threatened or actual claim, action, suit, demand, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any Indemnified Person may have pursuant to such claim, action, suit, demand, proceeding or investigation in which any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from the Closing and until the six year anniversary of the Closing, the Company shall, and shall cause the Transferred Entities to, indemnify, defend and hold harmless each Person person who is now, or has been at any time prior to the date of this Agreement hereof, or who becomes prior to the ClosingEffective Time, a director director, officer, employee, fiduciary or officer agent of the Company or any Transferred Entity subsidiary of the Company (the "Indemnified Parties") is, or is or was serving at the request of a Transferred Entity as a director or officer of another corporationthreatened to be, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is made a party or is otherwise involved (including as a witness) 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 a Transferred Entity or is or was serving at the request of a Transferred Entity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining toto (i) the fact that he is or was a director, officer, employee, fiduciary or agent of the Company or any subsidiary of the Company, or is or was serving at the request of the Company or any subsidiary of the Company as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise or (ii) the negotiation, execution or performance of this Agreement or any of the Transactionstransactions contemplated hereby, whether in each caseany case asserted or arising before or after the Effective Time, the parties hereto agree to cooperate and use their commercially reasonable efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time, Parent shall cause the Surviving Corporation to, and the Surviving Corporation shall, indemnify and hold harmless, as and to the fullest full extent permitted under by applicable Law Law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, demand, proceeding or investigation (whether asserted or arising before or after the Effective Time), (A) the Company, and after the Effective Time, Parent shall cause the Surviving Corporation to, and the Company Surviving Corporation shall, or shall cause a Transferred Entity to, promptly pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding claim, suit, proceeding or investigation to each Indemnified Person Party to the fullest full extent permitted under applicable Law). Without limiting by law, subject to the foregoing, provision by such Indemnified Party of an undertaking to reimburse the amounts so advanced in the event any of a final non-appealable determination by a court of competent jurisdiction that such Proceeding Indemnified Party is brought or threatened not entitled to be brought against any Indemnified Persons (whether arising before or after the Closing)such amounts, (iB) the Indemnified Persons Parties may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other one counsel satisfactory to themthem (except in case of a conflict of interest among two or more Indemnified Parties, in which case more than one counsel may be retained), and the Company shallCompany, or and after the Effective Time, Parent shall cause a Transferred Entity the Surviving Corporation to, and the Surviving Corporation shall, pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as Parties within 30 days after statements therefor accompanied by reasonable supporting documentation are received and (iiC) the Company shalland the Surviving Corporation will, and shall Parent will cause the Transferred Entities Surviving Corporation to, use their respective commercially reasonable best efforts to assist in the defense of any such matter; provided that neither the Company nor the Surviving Corporation shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided further, that the Surviving Corporation shall have no obligation hereunder to any Indemnified Party when and if, but only to the extent that, 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 the manner contemplated hereby is prohibited by applicable law. Any Indemnified Person Party wishing to claim indemnification or advancement of expenses under this Section 8.66.7, upon learning of any such Proceedingclaim, action, suit, demand, proceeding or investigation, shall notify the Company or and, after the applicable Transferred Entity (but Effective Time, the Surviving Corporation, thereof, provided, that the failure to so to notify shall not relieve affect the obligations of the Company from any obligations that it may have under this Section 8.6 and the Surviving Corporation except to the extent such failure to notify materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (3) yearsparty.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Conestoga Enterprises Inc)
Indemnification of Directors and Officers. (aSection 145(a) Without limiting of the Delaware General Corporation Law provides, in general, that a corporation may indemnify any other rights that any Indemnified Person may have pursuant person who was or is a party or is threatened to be made a party to any employment agreement threatened, pending or indemnification agreement completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in effect on the date hereof or otherwise, from the Closing and until the six year anniversary right of the Closingcorporation), because he or she is or was a director, officer, employee or agent of the Company shallcorporation, and shall cause the Transferred Entities to, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Closing, a director or officer of any Transferred Entity or is or was serving at the request of a Transferred Entity the corporation as a director director, officer, employee or officer agent of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) enterprise, against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expensesfees), liabilities or judgments or judgments, fines and amounts that are paid in settlement (with actually and reasonably incurred by the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred person in connection with such action, suit or proceeding, if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any threatened criminal action or actual Proceeding proceeding, had no reasonable cause to which such Indemnified Person believe his or her conduct was unlawful. Section 145(b) of the Delaware General Corporation Law provides, in general, that a corporation may indemnify any person who was or is a party or is otherwise involved (including as threatened to be made a witness) basedparty to any threatened, in whole pending or completed action or suit by or in part, on or arising, in whole or in part, out the right of the fact that such Person corporation to procure a judgment in its favor because the person is or was a director director, officer, employee or officer agent of a Transferred Entity the corporation, or is or was serving at the request of a Transferred Entity the corporation as a director director, officer, employee or officer agent of another corporation, partnership, limited joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made with respect to any claim, issue or matter as to which he or she shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability companybut in view of all of the circumstances of the case, he or she is fairly and reasonably entitled to indemnity for such expenses that the Court of Chancery or other adjudicating court shall deem proper. Section 145(g) of the Delaware General Corporation Law provides, in general, that a corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done against any liability asserted against such person and incurred by such Person person in any such capacity, or arising out of his or her status as such, whether pertaining or not the corporation would have the power to indemnify the person against such liability under Section 145 of the Delaware General Corporation Law. Our Certificate of Incorporation, or Charter, provides that no director shall be personally liable for monetary damages for breach of fiduciary duty as a director to the fullest extent that the Delaware General Corporation Law or any other law of the State of Delaware permits the limitation or elimination of the liability of directors. Our Charter further provides that any repeal or modification of such article by our stockholders or amendment to the Delaware General Corporation Law will not adversely affect any right or protection existing at the time of such repeal or modification with respect to any act acts or omission omissions occurring before such repeal or existing prior to, modification of a director serving at the time of such repeal or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part onmodification. Our Bylaws, or arising in whole or in part out ofthe Bylaws, or pertaining to, this Agreement or the Transactionsprovide that we will indemnify each of our directors and officers and, in each casethe discretion of our board of directors, certain employees, to the fullest extent permitted under applicable by the Delaware General Corporation Law as the same may be amended (except that in the case of amendment, only to the extent that the amendment permits us to provide broader indemnification rights than the Delaware General Corporation Law permitted us to provide prior to such the amendment) against any and all expenses, judgments, penalties, fines and amounts reasonably paid in settlement that are incurred by the Company shalldirector, officer or such employee or on the director’s, officer’s or employee’s behalf in connection with any threatened, pending or completed proceeding or any claim, issue or matter therein, to which he or she is or is threatened to be made a party because he or she is or was serving as a director, officer or employee of our company, or shall at our request as a director, partner, trustee, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of our company and, with respect to any criminal proceeding, had no reasonable cause a Transferred Entity toto believe his or her conduct was unlawful. Article VII, pay expenses incurred in connection therewith in advance Section 5 of the final disposition Bylaws further provides for the advancement of expenses to each of our directors and, in the discretion of the board of directors, to certain officers and employees. In addition, the Bylaws provide that the right of each of our directors and officers to indemnification and advancement of expenses shall be a contract right and shall not be exclusive of any other right now possessed or hereafter acquired under any statute, provision of the Charter or Bylaws, agreement, vote of stockholders or otherwise. Furthermore, Article VII, Section 7 of the Bylaws authorizes us to provide insurance for our directors, officers and employees, against any liability, whether or not we would have the power to indemnify such Proceeding to person against such liability under the Delaware General Corporation Law or the provisions of Article VII of the Bylaws. In connection with the sale of common stock being registered hereby, we have entered into indemnification agreements with each Indemnified Person of our directors and our executive officers. These agreements provide that we will indemnify each of our directors and such officers to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Closing), (i) the Indemnified Persons may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to them, by law and the Company shallCharter and Bylaws. We also maintain a general liability insurance policy, which covers certain liabilities of directors and officers of our company arising out of claims based on acts or shall cause a Transferred Entity to, pay all reasonable fees and expenses of such counsel for the Indemnified Persons omissions in their capacities as promptly as statements therefor accompanied by reasonable supporting documentation are received and (ii) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification directors or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Entity (but the failure so to notify shall not relieve the Company from any obligations that it may have under this Section 8.6 except to the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (3) yearsofficers.
Appears in 1 contract
Samples: Agreement
Indemnification of Directors and Officers. (a) Without limiting In the event of any other rights that threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including without limitation any Indemnified Person may have pursuant to such claim, action, suit, proceeding or investigation in which any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from the Closing and until the six year anniversary of the Closing, the Company shall, and shall cause the Transferred Entities to, indemnify, defend and hold harmless each Person person who is now, or has been at any time prior to the date of this Agreement Agreement, or who becomes become prior to the ClosingEffective Time, a director or officer of any Transferred Entity the Company (the "Indemnified Parties") is, or is or was serving at the request of a Transferred Entity as a director or officer of another corporationthreatened to be, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is made a party or is otherwise involved (including as a witness) 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 a Transferred Entity or is or was serving at the request of a Transferred Entity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining toto (i) the fact that he is or was a director or officer of the Company, or (ii) this Agreement or any of the Transactionstransactions contemplated hereby, whether in each caseany case asserted or arising before or after the Effective Time, the parties hereto agree to cooperate and use their best efforts to defend against and respond thereto. It is understood and agreed that after the Effective Time, the Surviving Corporation shall indemnify and hold harmless, as and to the fullest extent permitted under applicable Law by law, each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorney's fees and the Company shall, or shall cause a Transferred Entity to, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding claim, suit, proceeding or investigation to each Indemnified Person Party to the fullest extent permitted under by law upon receipt of any undertaking required by applicable Lawlaw), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, proceeding or investigation; provided, however, that the Surviving Corporation shall not indemnify any Person with respect to any losses, claims, damages, liabilities, costs, expenses, judgments, fines and amounts paid in settlement or otherwise in connection with any such threatened or actual claim, action, suit, proceeding or investigation arising out of such Person's (i) willful misconduct or recklessness; (ii) acts which such Person knew, or should have known, were illegal at the time such acts were committed; or (iii) acts in contravention of such Person's duties to the Company. Without limiting the foregoing, in In the event of any such Proceeding is brought threatened or threatened to be brought against any Indemnified Persons actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the ClosingEffective Time), the Indemnified Parties may retain counsel reasonably satisfactory to them after consultation with the Surviving Corporation; provided, however, that (i) the Indemnified Persons may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to them, and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received and (ii) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Entity (but the failure so to notify shall not relieve the Company from any obligations that it may have under this Section 8.6 except to the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person Surviving Corporation shall have the right to require that assume the defense thereof and upon such determination be made by special, independent legal counsel selected by assumption the Indemnified Person and approved by the Company (which approval Surviving Corporation shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (3) years.liable
Appears in 1 contract
Indemnification of Directors and Officers. (a) Without limiting any other rights that any Indemnified Person may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from From the Closing and until through the six year sixth (6th) anniversary of the ClosingClosing (and continuing thereafter with respect to any proceeding or claim asserted or brought on or prior to such anniversary), the Company shall, and Purchaser shall cause the Transferred Acquired Entities toand any successors, assigns or other subsequent continuing and surviving entities to indemnify, defend and hold harmless harmless, to the fullest extent permitted under the Organizational Documents governing the Acquired Entities, each Person person who was or is nowmade a party or threatened to be made a party to or is involved in any proceeding by reason of the fact that such person is, or has been was at any time prior to the date of this Agreement or who becomes prior to the Closing, a director director, officer, manager, partner, member or officer senior employee (each, a “D&O”) of any Transferred Entity or is or was serving at of the request of Acquired Entities (each, a Transferred Entity as a director or officer of another corporation“Company Indemnified Person”), partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities Damages incurred or judgments or amounts that are paid in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred suffered by such Company Indemnified Person in connection with any threatened or actual Proceeding to which such Indemnified Person is a party or is otherwise involved (including as a witness) 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 a Transferred Entity or is or was serving at the request of a Transferred Entity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacitytherewith, whether pertaining to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in Closing. The Organizational Documents of each case, to the fullest extent permitted under applicable Law (and the Company shall, or shall cause a Transferred Entity to, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Closing), (i) the Indemnified Persons may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to themAcquired Entities shall contain, and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received and (ii) the Company shall, and Purchaser shall cause the Transferred Organizational Documents of each of the Acquired Entities toto continue to so contain, use their respective reasonable best efforts provisions no less favorable with respect to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or indemnification, advancement of expenses under this Section 8.6, upon learning and exculpation of present and former D&Os of any of the Acquired Entities than are set forth in the Organizational Documents of such Proceeding, shall notify Acquired Entity as of the Company date of this Agreement. If an Acquired Entity or the applicable Transferred Entity any of its successors or assigns (but the failure so to notify shall not relieve the Company from a) consolidates with or merges with or into any obligations that it may have under this Section 8.6 except to the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified other Person and approved by the Company (which approval shall not be unreasonably withheld the continuing or delayed)surviving entity, partnership or other entity of such consolidation or merger or (b) transfers or conveys all or substantially all of its properties and assets to any Person, then, and who has not otherwise performed material services for in each such case, proper provision shall be made so that the Company or successors and assigns of such Acquired Entity assume the Indemnified Person within the last three (3) yearsobligations set forth in this Section 6.2.
Appears in 1 contract
Samples: Securities Purchase Agreement (Enpro Industries, Inc)
Indemnification of Directors and Officers. (a) Without limiting The Corporation shall indemnify and hold harmless, to the fullest extent permitted by the DGCL as it presently exists or may hereafter be amended, any other rights that any Indemnified Person may have pursuant to any employment agreement current or indemnification agreement in effect on the date hereof former director or otherwise, from the Closing and until the six year anniversary officer of the ClosingCorporation who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”) by reason of the Company shall, and shall cause the Transferred Entities to, indemnify, defend and hold harmless each Person who is nowfact that he or she, or has been at any time prior to a person for whom he or she is the date of this Agreement legal representative, is or who becomes prior to the Closing, was a director or officer of any Transferred Entity the Corporation or, while serving as a director or officer of the Corporation, is or was serving at the request of a Transferred Entity the Corporation as a director director, officer, employee or officer agent of another corporation, corporation or of a partnership, limited liability company, joint venture, Employee Benefit Plantrust, trust enterprise or other enterprise non-profit entity (a “covered person”), including service with respect to employee benefit plans, out of the “Indemnified Persons”) assets of the Corporation, against all lossesliability, claims, damages, costs, fines, penalties, and loss suffered and expenses (including attorneys’ fees, judgments, fines ERISA excise taxes or penalties and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or settlement) reasonably incurred by such person in connection with any threatened such Proceeding other than such liability (if any) that they may incur by reason of their own actual fraud, willful neglect, or willful default. Notwithstanding the preceding sentence, except as otherwise provided in Section 9.4, the Corporation shall be required to indemnify a person in connection with a Proceeding initiated by such person only if the Proceeding was authorized in the specific case by the Board. No covered person shall be found to have committed actual Proceeding fraud, willful neglect or willful default under this Article unless or until a court of competent jurisdiction shall have made a finding to which such Indemnified Person is a party or is otherwise involved (including as a witness) based, in whole or in partthat effect. The directors, on or arising, in whole or in part, out behalf of the fact that such Person is or was a Corporation, may purchase and maintain insurance for the benefit of any director or officer against any liability which, by virtue of a Transferred Entity any rule of law, would otherwise attach to such person in respect of any negligence, default, breach of duty or is or was serving at the request breach of a Transferred Entity as a director or officer trust of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by which such Person person may be guilty in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, relation to the fullest extent permitted under applicable Law (and the Company shall, or shall cause a Transferred Entity to, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Closing), (i) the Indemnified Persons may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to them, and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received and (ii) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Entity (but the failure so to notify shall not relieve the Company from any obligations that it may have under this Section 8.6 except to the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (3) yearsCorporation.
Appears in 1 contract
Samples: Agreement and Plan of Merger (ION Acquisition Corp 2 Ltd.)
Indemnification of Directors and Officers. (a) a. Without limiting any other additional rights that any Indemnified Person director, officer, trustee, employee, agent, or fiduciary may have pursuant to under any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from the Closing and until the six year anniversary of the Closingagreement, the Company shallCertificate and the Company By-laws, this Agreement or, if applicable, similar organizational documents or agreements of any of the Company Subsidiaries, from and shall cause after the Transferred Entities toEffective Time, indemnifyParent and the Surviving Corporation, defend jointly and severally, will: (i) indemnify and hold harmless each Person who is now, or has been or becomes at any time prior to the date of this Agreement or who becomes prior to the ClosingEffective Time, a an officer, director or officer employee of the Company or any Transferred Entity Company Subsidiary, solely when acting in his, her or its capacity as a director, officer, employee of the Company or any Company Subsidiary or when acting in his, her or its capacity as a member, trustee or fiduciary of another corporation, foundation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (whether or not such other entity or enterprise is or was serving affiliated with the Company) at the request of a Transferred Entity as a director or officer on behalf of another corporationthe Company or any Company Subsidiary (together with such Person’s heirs, partnershipexecutors or administrators collectively, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified PersonsParties”) to the fullest extent authorized or permitted by applicable Law in connection with any Claim or Action against all any losses, claims, damages, liabilities, costs, Indemnification Expenses, judgments, fines, penalties, expenses (including attorneys’ penalties and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is a party or is otherwise involved (including as a witness) 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 a Transferred Entity or is or was serving at the request of a Transferred Entity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”)settlement, including all Indemnified Liabilities based in whole interest, assessments and other charges paid, arising out of matters existing or in part on, occurring at or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, prior to the fullest extent permitted under applicable Law (and the Company shall, or shall cause a Transferred Entity to, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Closing), (i) the Indemnified Persons may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to them, and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received Effective Time; and (ii) the Company shallpromptly pay on behalf of or, and shall cause the Transferred Entities towithin fifteen (15) days after any request for advancement, use their respective reasonable best efforts an advance to assist in the defense each of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Entity (but the failure so to notify shall not relieve the Company from any obligations that it may have under this Section 8.6 except to the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Parties (provided that the Person and approved by the Company (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (3) years.to whom expenses are advanced provides an undertaking to repay such
Appears in 1 contract
Indemnification of Directors and Officers. (a) Without limiting Each person who was or is a party or is threatened to be made a party to or is involved in any other rights that any Indemnified Person may have pursuant to any employment agreement threatened, pending or indemnification agreement completed action, suit or proceeding, formal or informal, whether brought in effect on the date hereof or otherwise, from the Closing and until the six year anniversary name of the Closingcorporation or otherwise and whether of a civil, criminal, administrative or investigative nature (hereinafter a "proceeding"), by reason of the Company shall, and shall cause the Transferred Entities to, indemnify, defend and hold harmless each Person who is nowfact that he or she, or has been at any time prior to a person of whom he or she is the date of this Agreement legal representative, is or who becomes prior to the Closing, was a director or officer of any Transferred Entity the corporation or is or was serving at the request of the corporation as a Transferred Entity director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is an alleged action or inaction in an official capacity or in any other capacity while serving as a director or officer officer, shall, subject to the terms of another any agreement between the corporation and such person, be indemnified and held harmless by the corporation to the fullest extent permissible under California law and the corporation's Articles of Incorporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against all lossescosts, claimscharges, damagesexpenses, costsliabilities and losses (including attorneys' fees, judgments, fines, penalties, expenses (including attorneys’ ERISA excise tax or penalties and other professionals’ fees and expenses), liabilities amounts paid or judgments or amounts that are to be paid in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed settlement) reasonably incurred or conditioned), of or incurred suffered by such person in connection with any threatened or actual Proceeding therewith, and such indemnification shall continue as to which such Indemnified Person is a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was person who has ceased to be a director or officer and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that (a) the corporation shall indemnify any such person seeking indemnification in connection with a Transferred Entity proceeding (or is part thereof) initiated by such person only if such proceeding (or part thereof) was serving at authorized by the request Board of a Transferred Entity as a director or officer of another the corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust (b) the corporation shall indemnify such person seeking indemnification in connection with a proceeding (or part thereof) other enterprise or than a proceeding by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and the Company shall, or shall cause a Transferred Entity to, pay expenses incurred in connection therewith in advance name of the final disposition corporation to procure a judgment in its favor only if any settlement of any such Proceeding to each Indemnified Person to a proceeding is approved in writing by the fullest extent permitted under applicable Law). Without limiting the foregoingcorporation, in the event any and (c) that no such Proceeding is brought or threatened to person shall be brought against any Indemnified Persons (whether arising before or after the Closing), indemnified (i) the Indemnified Persons may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to them, and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received and (ii) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Entity (but the failure so to notify shall not relieve the Company from any obligations that it may have under this Section 8.6 except to the extent that the aggregate of losses to be indemnified exceeds the amount of such failure materially prejudices losses for which the Company’s position with respect to such claims). With respect director or officer is paid pursuant to any determination of whether any Indemnified Person is entitled to indemnification directors' and officers' liability insurance policy maintained by the Company corporation; (ii) on account of any suit in which judgment is rendered against such person for an accounting of profits made from the purchase or sale by such person of securities of the corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law; (iii) if a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require court of competent jurisdiction finally determines that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (3) years.any indemnification hereunder is unlawful;
Appears in 1 contract
Samples: investors.swgasholdings.com
Indemnification of Directors and Officers. (a) Without limiting any other additional rights that any Indemnified Person director, officer, trustee, employee, agent, or fiduciary may have pursuant to under any employment agreement or indemnification agreement in effect on or under the date hereof respective certificates of incorporation or otherwisebylaws (or comparable organizational documents) of the Company or the Company Subsidiary, from and after the Closing Effective Time, Parent and until the six year anniversary of the Closing, the Company Surviving Corporation shall, and shall cause the Transferred Entities to, indemnify, defend : (i) indemnify and hold harmless each current and former officer or director of the Company or the Company Subsidiary, and each such Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Closing, a director or officer of any Transferred Entity or is or was Effective Time serving at the request of a Transferred Entity the Company or the Company Subsidiary as a director director, officer, employee, fiduciary or officer agent of another corporation, partnership, limited liability companytrust, joint venture, Employee Benefit Plan, trust employee benefit plan or other enterprise enterprise, as provided in the respective certificates or articles of incorporation or bylaws (or comparable organizational documents) of the “Company or the Company Subsidiary (collectively, the ‘‘Indemnified Persons”’’) against all lossesto the fullest extent authorized or permitted by applicable Law, claimsas now or hereafter in effect, damages, costsin connection with any Claim (as defined below) and any judgments, fines, penalties, expenses (including attorneys’ penalties and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid in settlement (with the approval of the indemnifying partyincluding all interest, which approval shall not be unreasonably withheld, delayed assessments and other charges paid or conditioned), of or incurred payable in connection with any threatened or actual Proceeding to which such Indemnified Person is a party or is otherwise involved (including as a witness) based, in whole or in partrespect of such judgments, fines, penalties or amounts paid in settlement) resulting therefrom; and (ii) promptly pay on or arising, in whole or in part, out behalf of each of the fact that such Person is or was a director or officer of a Transferred Entity or is or was serving at the request of a Transferred Entity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each casePersons, to the fullest extent authorized or permitted under by applicable Law Law, as now or hereafter in effect, any Expenses (and the Company shallas defined below) incurred in defending, serving as a witness with respect to, or shall cause a Transferred Entity to, pay expenses incurred otherwise participating in connection therewith any Claim in advance of the final disposition of such Claim, including payment on behalf of or advancement to the Indemnified Person of any Expenses incurred by such Proceeding Indemnified Person in connection with enforcing any rights with respect to such indemnification and/or advancement, in each case without the requirement of any bond or other security, but subject to Parent’s or the Surviving Corporation’s, as applicable, receipt of an undertaking by or on behalf of such Indemnified Person to the fullest extent permitted repay such Expenses if it is ultimately determined under applicable LawLaw that such Indemnified Person is not entitled to be indemnified. The indemnification and advancement obligations of Parent and the Surviving Corporation pursuant to this Section 5.10(a) shall extend to acts or omissions occurring at or before the Effective Time and any Claim relating thereto (including with respect to any acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby, including the consideration and approval thereof and the process undertaken in connection therewith and any Claim relating thereto). Without limiting the foregoing, in the event any such Proceeding is brought or threatened All rights to indemnification and advancement conferred hereunder shall continue as to a person who has ceased to be brought against any Indemnified Persons (whether arising before a director or after the Closing), (i) the Indemnified Persons may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to them, and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses officer of such counsel for the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received and (ii) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Entity (but Company Subsidiary after the failure so date hereof and shall inure to notify shall not relieve the Company from any obligations that it may have under benefit of such person’s heirs, executors and personal and legal representatives. For purposes of this Section 8.6 except to 5.10(a): (x) the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to term ‘‘Claim’’ means any determination of threatened, asserted, pending or completed claim, proceeding, investigation or inquiry, whether instituted by any party hereto, Governmental Entity or any other party, that any Indemnified Person is entitled in good faith believes might lead to indemnification by the Company institution of any such claim, proceeding, investigation or a Transferred Entity under this Section 8.6inquiry, whether civil, criminal, administrative, investigative or other, including any arbitration or other alternative dispute resolution mechanism, arising out of or pertaining to matters that relate to such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall not be unreasonably withheld Person’s duties or delayed), and who has not otherwise performed material services for service as a director or officer of the Company or the Company Subsidiary, at or prior to the Effective Time; and (y) the term ‘‘Expenses’’ means reasonable attorneys’ fees and all other reasonable costs, expenses and obligations (including, without limitation, experts’ fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and binding costs, as well as telecommunications, postage and courier charges) paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to investigate, defend, be a witness in or participate in, any Claim for which indemnification is authorized pursuant to this Section 5.10(a), including any action relating to a claim for indemnification or advancement brought by an Indemnified Person. Neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Claim in respect of which indemnification has been or could be sought by such Indemnified Person within hereunder unless: (i) such settlement, compromise or judgment includes an unconditional release of such Indemnified Person from all liability arising out of such Claim, (ii) such Indemnified Person otherwise consents thereto or (iii) Parent or the last three (3) yearsSurviving Corporation acknowledges that such Claim is subject to this Section 5.10.
Appears in 1 contract
Samples: Agreement and Plan of Merger
Indemnification of Directors and Officers. (a) Without limiting any other rights that any Indemnified Person may have pursuant to any employment agreement To the fullest extent permitted or indemnification agreement in effect on required under Delaware law, the date hereof Surviving Corporation and the Buyer shall indemnify each individual who is or otherwise, from the Closing and until the six year anniversary was a director of the Closing, the Company shall, and shall cause the Transferred Entities to, indemnify, defend and hold harmless each Person who is now, or has been at any time immediately prior to the date Effective Time (for purposes of this Agreement Section 4.15, a "Director") and each individual who is or who becomes was an officer of the Company immediately prior to the ClosingEffective Time (for purposes of this Section 4.15, an "Officer") against all Losses (as defined 43 below) incurred by or on behalf of the Director or Officer in connection with a director Proceeding (as defined below) arising out of or officer of any Transferred Entity relating directly or indirectly to this Agreement in which the Director or Officer is a Party (as defined below) because he or she is or was serving at a Director or Officer. An Officer or Director shall promptly notify the request of a Transferred Entity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid in settlement (with the approval Buyer of the indemnifying partycommencement or written threat of any Proceeding for which he or she is entitled to indemnification under this Section 4.15, such Officer or Director shall permit the Buyer to assume control of the defense of such Proceeding with counsel reasonably satisfactory to such Officer or Director. No such Officer or Director shall agree to any settlement of any such Proceeding without the prior written consent of the Buyer, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is a party or is otherwise involved (including as a witness) 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 a Transferred Entity or is or was serving at the request of a Transferred Entity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or . The Buyer shall not done by such Person in any such capacity, whether pertaining agree to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and the Company shall, or shall cause a Transferred Entity to, pay expenses incurred in connection therewith in advance of the final disposition settlement of any such Proceeding without the prior written consent of the Officer or Director that is a Party to each Indemnified Person to the fullest extent permitted under applicable Law)such Proceeding, which shall not be unreasonably withheld. Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Closing)For purposes of this Section 4.15, (i) the Indemnified Persons may retain "Loss" shall mean any Parent Party’s and all expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to them, and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses of her in connection with such counsel for the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received and Proceeding; (ii) the Company shall"Party" shall mean an individual who was or is, or who is threatened to be made, a named defendant or respondent in a Proceeding; and (iii) "Proceeding" shall cause the Transferred Entities tomean any threatened, use their respective reasonable best efforts to assist pending or completed civil, criminal, administrative or investigative action, suit, arbitration or other proceeding, whether formal or informal and which is brought by or in the defense right of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Entity (but the failure so to notify shall not relieve the Company from by any obligations that it may have under this Section 8.6 except to the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (3) yearsother person.
Appears in 1 contract
Samples: 1 Agreement and Plan of Merger (American Superconductor Corp /De/)
Indemnification of Directors and Officers. (a) Without limiting any other rights that any Indemnified Person may have pursuant to any employment agreement or indemnification agreement in effect on After the date hereof or otherwise, from the Closing and until the six year anniversary of the ClosingEffective Time, the Company shall, and Surviving Corporation shall cause the Transferred Entities to, indemnify, defend indemnify and hold harmless (and shall also advance expenses as incurred to the fullest extent permitted under applicable Law to), each Person person who is now, now or has been at any time prior to the date of this Agreement hereof or who becomes prior to the Closing, a Effective Time an officer or director of the Company or officer of any Transferred Entity or is or was serving at the request of a Transferred Entity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise Subsidiary (the “"Indemnified Persons”") against (i) all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ counsel fees and expenses), settlement, payments or liabilities or judgments or amounts that are paid in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), arising out of or incurred in connection with any threatened claim, demand, action, suit, proceeding or actual Proceeding to which such Indemnified Person is a party or is otherwise involved (including as a witness) based, investigation based in whole or in part, part on or arising, arising in whole or in part, part out of the fact that such Person person is or was a an officer or director of the Company or officer of a Transferred Entity or is or was serving at the request of a Transferred Entity as a director or officer of another corporationany Subsidiary, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done whether or not done by such Person in any such capacity, whether pertaining to any act matter existing or omission occurring at or existing prior to, to the Effective Time and whether or not asserted or claimed prior to or at or after the Closing Effective Time, and whether asserted or claimed prior to, at or after for which indemnification has been provided by the Closing Company in accordance with Applicable Law (“"Indemnified Liabilities”"), including ; and (ii) all Indemnified Liabilities based in whole or in part on, on or arising in whole or in part out of, of or pertaining to, to this Agreement or the Transactionstransactions contemplated hereby, in each case, case to the fullest extent a corporation is permitted under applicable Law (the DGCL to indemnify its own directors and the Company shallofficers. Nothing contained herein shall make Buyer, or shall cause a Transferred Entity toSub, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Closing), (i) the Indemnified Persons may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to them, and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received and (ii) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Entity (but Surviving Corporation, an insurer, a co-insurer or an excess insurer in respect of any insurance policies which may provide coverage for Indemnified Liabilities, nor shall this Section 5.12 relieve the failure so obligations of any insurer in respect thereto. Each Indemnified Person is intended to notify be a third party beneficiary of this Section 5.12. This Section 5.12 shall survive the consummation of the Merger at the Effective Time, is intended to benefit each Indemnified Person and his or her heirs and representatives, each of whom may specifically enforce its terms against Buyer or the Surviving Corporation, and shall be binding on all successors and assigns of Buyer and the Surviving Corporation. This Section 5.12 shall not relieve the Company from limit or otherwise adversely affect any obligations that it rights any Indemnified Person may have under this Section 8.6 except to the extent such failure materially prejudices the Company’s position any agreement with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall not be unreasonably withheld Company's Certificate of Incorporation or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (3) yearsBy-laws as presently in effect.
Appears in 1 contract
Indemnification of Directors and Officers. (a) Without limiting The Corporation shall indemnify, to the fullest extent permitted by the DGCL, any other rights that person who was or is a party or is threatened to be made a party to or is otherwise involved in any Indemnified Person may have pursuant to any employment agreement threatened, pending or indemnification agreement in effect on the date hereof completed action, suit or proceeding, whether civil, criminal, administrative, investigative or otherwise, from and whether by or in the Closing and until the six year anniversary right of the ClosingCorporation, the Company shall, and shall cause the Transferred Entities to, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Closingits stockholders, a director third party or otherwise (a “Proceeding”), by reason of the fact that he is or was a Director or officer of any Transferred Entity the Corporation, or is or was a Director or officer of the Corporation serving at the its request of a Transferred Entity as a director director, officer, employee or officer agent of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) enterprise, against all lossesexpense (including, claimsbut not limited to, damagesattorneys’ fees), costsliability, loss, judgments, fines, penaltiesexcise taxes, expenses (including attorneys’ penalties and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or actually and reasonably incurred by him in connection with any threatened or actual Proceeding to which such Indemnified Person is a party or is otherwise involved (including as a witness) 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 a Transferred Entity or is or was serving at the request of a Transferred Entity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing (“Indemnified Liabilities”)Proceeding, including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case, to the fullest extent permitted under applicable Law (and the Company shall, or shall cause a Transferred Entity to, pay expenses incurred in connection therewith seeking such indemnification. In addition, the Corporation shall grant such indemnification to each of its Directors and officers with respect to any matter in a Proceeding as to which his liability is limited pursuant to the Certificate of Incorporation of the Corporation. However, such indemnification shall exclude (i) indemnification with respect to any improper personal benefit which a Director or officer is determined to have received and of the expenses of defending against an improper personal benefit claim unless the Director or officer is successful on the merits in said defense, and (ii) indemnification of present or former officers, directors, employees or agents of a constituent corporation absorbed in a merger or consolidation transaction with this Corporation with respect to their activities prior to said transaction, unless specifically authorized by the Board of Directors or stockholders of this Corporation. Such indemnification shall include prompt payment of expenses reasonably incurred by a Director or officer in defending a Proceeding in advance of the final disposition of any such Proceeding Proceeding, upon receipt of an undertaking by or on behalf of the Director or officer to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any repay such Proceeding amounts if it shall ultimately be determined that he is brought or threatened not entitled to be brought against any Indemnified Persons (whether arising before or after indemnified by the Closing), (i) the Indemnified Persons may retain any Parent Party’s (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to them, and the Company shall, or shall cause a Transferred Entity to, pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received and (ii) the Company shall, and shall cause the Transferred Entities to, use their respective reasonable best efforts to assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses Corporation under this Section 8.66.4, upon learning which undertaking shall be an unsecured general obligation of any such Proceeding, shall notify the Company Director or the applicable Transferred Entity (but the failure so officer and may be accepted without regard to notify shall not relieve the Company from any obligations that it may have under this Section 8.6 except his or her ability to the extent such failure materially prejudices the Company’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (3) yearsmake repayment.
Appears in 1 contract
Samples: Business Combination Agreement (Diamond Eagle Acquisition Corp. \ DE)
Indemnification of Directors and Officers. SECTION 1. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended (abut, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), any person (a “Covered Person”) Without limiting who was or is a party or is threatened to be made a party to, or is otherwise involved in, any other rights that any Indemnified Person may have pursuant to any employment agreement threatened, pending or indemnification agreement completed action, suit or proceeding, whether civil, criminal, administrative or investigative in effect on the date hereof or otherwisenature (a “proceeding”), from the Closing and until the six year anniversary by reason of the Closing, the Company shall, and shall cause the Transferred Entities to, indemnify, defend and hold harmless each Person who is nowfact that such Covered Person, or has been a person for whom he or she is the legal representative, is or was, at any time during which these Bylaws are in effect or any time prior thereto (whether or not such Covered Person continues to serve in such capacity at the date time any indemnification or payment of this Agreement expenses pursuant hereto is sought or who becomes prior to at the Closingtime any proceeding relating thereto exists or is brought), a director or officer of the Corporation (including, for the purposes of this Article XIII, any Transferred Entity predecessor of the Corporation absorbed by the Corporation in a consolidation, merger or reorganization), or has or had agreed to become a director or officer of the Corporation, or while a director or officer of the Corporation is or was serving at the request of the Corporation as a Transferred Entity director, officer, trustee, employee or agent of another corporation, limited liability company, partnership, joint venture, employee benefit plan, trust, nonprofit entity or other enterprise, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, trustee, employee or agent or in any other capacity while serving as a director, officer, trustee, employee or agent, against all liability and loss suffered (including, without limitation, any judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) and expenses (including attorneys’ fees and disbursements), actually and reasonably incurred by such Covered Person in connection with such proceeding to the fullest extent permitted by law, and such indemnification shall continue as to a person who has ceased to be a director, officer, trustee, employee or agent and shall inure to the benefit of such person’s heirs, executors and administrators, and the Corporation may enter into agreements with any such person for the purpose of providing for such indemnification. For purposes of this Article XIII, a director or officer of the Corporation serving as a director, officer, trustee, employee or agent or in any other capacity while serving as a director, officer, trustee, employee or agent of a company of which the Corporation owns, directly or indirectly, a majority of the shares or other interests entitled to vote in the selection of its directors or the members of a comparable governing body or of an employee benefit plan of the Corporation or of any such company shall be deemed to have served in such capacity at the request of the Corporation and actions taken or omitted by a Covered Person on behalf of such an employee benefit plan of the Corporation or of any direct or indirect subsidiary of the Corporation, if done in good faith and in a manner that he or she reasonably believed was in the best interests of the employee benefit plan or its participants or beneficiaries, shall be deemed to have been done in a manner not opposed to the best interests of the Corporation and actions taken or omitted on behalf of a direct or indirect subsidiary of the Corporation (even if not wholly owned by the Corporation), if done in good faith and in a manner that he or she reasonably believed to be in the best interests of the subsidiary or its owners, shall be deemed to have been done in a manner not opposed to the best interests of the Corporation, and, in each case, with respect to any criminal proceeding, if he or she had no reasonable cause to believe his or her conduct was unlawful. Except as otherwise provided in this Article XIII, and other than proceedings to enforce rights conferred by the Certificate of Incorporation or this Article XIII, the Corporation shall be required to indemnify a person in connection with a proceeding (or part thereof) initiated by such person only if the proceeding (or part thereof) was authorized by the Board of Directors. The right to indemnification conferred in this Article XIII shall include the right to be paid by the Corporation the expenses (including attorneys’ fees) incurred by a Covered Person in defending any such proceeding in advance of its final disposition, such advances to be paid by the Corporation within sixty (60) days after the receipt by the Corporation of a statement or statements from the claimant requesting such advance or advances from time to time (and subject to filing a written request for indemnification pursuant to the following paragraph of Section 1 of this Article XIII); provided, however, that the payment of such expenses incurred by a director or officer (or a former director or officer) in such person’s capacity as a director or officer of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or (and not in any other enterprise (the “Indemnified Persons”) against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid capacity in settlement (with the approval of the indemnifying party, which approval shall not be unreasonably withheld, delayed or conditioned), of or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is a party service was or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that rendered by such Person is or was person while a director or officer officer, including, without limitation, service to an employee benefit plan) shall be made only upon receipt of a Transferred Entity an undertaking by or on behalf of the Covered Person to repay all amounts advanced if it shall ultimately be determined by final judicial decision from which there is no further right of appeal that the Covered Person is not entitled to be indemnified by the Corporation for such expenses under this Article XIII or was serving otherwise. The rights conferred upon Covered Persons in this Article XIII shall be contract rights that vest at the time of such person’s service to or at the request of the Corporation and such rights shall continue as to a Transferred Entity Covered Person who has ceased to be a director, officer, trustee, employee or agent and shall inure to the benefit of the indemnitee’s heirs, executors and administrators. To obtain advancement or indemnification under this Article XIII, a claimant shall submit to the Corporation a written request, including therein or therewith such documentation and information as is reasonably available to the claimant and is reasonably necessary to determine whether and to what extent the claimant is entitled to advancement or indemnification. Upon written request by a director or officer of another corporationclaimant for indemnification pursuant to the immediately preceding sentence, partnershipa determination, limited liability companyif required by applicable law, joint venturewith respect to the claimant’s entitlement thereto shall be made as follows: (1) if requested by the claimant, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Closing and whether asserted or claimed prior to, at or after the Closing Independent Counsel (“Indemnified Liabilities”as hereinafter defined), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or (2) if no request is made by the Transactions, in each case, to the fullest extent permitted under applicable Law (and the Company shall, or shall cause claimant for a Transferred Entity to, pay expenses incurred in connection therewith in advance of the final disposition of any such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the event any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Closing)determination by Independent Counsel, (i) by the Indemnified Persons may retain any Parent Party’s Board of Directors by a majority vote of a quorum consisting of Disinterested Directors (or a Transferred Entity’s) regularly engaged legal counsel or other counsel satisfactory to them, and the Company shallas hereinafter defined), or shall cause a Transferred Entity to, pay all reasonable fees and expenses of such counsel for the Indemnified Persons as promptly as statements therefor accompanied by reasonable supporting documentation are received and (ii) by a committee of Disinterested Directors designated by a majority of such directors, even though less than a quorum, or (iii) if a quorum of the Company shallBoard of Directors consisting of Disinterested Directors is not obtainable or, and shall cause the Transferred Entities toeven if obtainable, use their respective reasonable best efforts to assist such quorum of Disinterested Directors so directs, by Independent Counsel in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 8.6, upon learning of any such Proceeding, shall notify the Company or the applicable Transferred Entity (but the failure so to notify shall not relieve the Company from any obligations that it may have under this Section 8.6 except a written opinion to the extent such failure materially prejudices Board of Directors, a copy of which shall be delivered to the Company’s position with respect to such claims)claimant, or (iv) if a quorum of Disinterested Directors so directs, by the stockholders of the Corporation. With respect to any In the event the determination of whether any Indemnified Person is entitled entitlement to indemnification by the Company or a Transferred Entity under this Section 8.6, such Indemnified Person shall have the right is to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by the Company (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for the Company or the Indemnified Person within the last three (3) years.Independent
Appears in 1 contract
