Indemnification of Directors. (a) From and after the Effective Time, Parent and Surviving Corporation shall each defend, indemnify and advance costs and expenses (including reasonable attorneys' fees, disbursements and expenses) and hold harmless each present and former director and officer of the Company or its Subsidiaries determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, settlements or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising after the Effective Time and out of or pertaining to matters existing or occurring at or prior to the Effective Time, including without limitation, the authorization of this Agreement and the transactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under Delaware law and its certificate of incorporation or by-laws in effect on the date hereof to indemnify such person (and also advance expenses as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification); provided that any determination required by law to be made with respect to whether an officer's or director's conduct complies with the standards set forth under Delaware law and the Company's certificate of incorporation and by-laws as of the date hereof shall be made by independent counsel selected jointly by Parent and the Indemnified Party. (b) In the event of any claim, action, suit, proceeding or investigation in which indemnification pursuant to Section 6.10(a) is sought (whether arising before or after the Effective Time), (i) Parent shall have the right to assume the defense thereof and Parent shall not be liable to any Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Parent elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Parent and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them and reasonably satisfactory to Parent, and Parent shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that Parent shall be obligated pursuant to this paragraph (b) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, (ii) the Indemnified Parties will cooperate in the defense of any such matter unless counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest making such cooperation inadvisable and (iii) Parent shall not be liable for any settlement effected without its prior written consent (which shall not be unreasonably withheld); and provided further that Parent shall not have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and nonappealable, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. If a court of competent jurisdiction determines that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law, then Parent shall provide indemnification to the maximum extent and in such manner as is permissible under applicable law. If such indemnity is completely unavailable with respect to any Indemnified Party, Parent and the Indemnified Party shall contribute to the amount payable in such proportion as is appropriate to reflect relative faults and benefits. (c) For a period of six (6) years following the Effective Time, Parent will provide to the persons who served as directors or officers of Company or any of the Company's Subsidiaries on or before the Effective Time, insurance against liabilities and claims (and related expenses) made against them resulting from their service as such prior to the Effective Time. Such coverage may be provided by means of an extended reporting period endorsement to the policy presently issued to the Company by the present carrier for the Company, or by such other means which shall provide substantially equivalent coverage to the persons.
Appears in 3 contracts
Samples: Merger Agreement (Saratoga Beverage Group Inc), Merger Agreement (Saratoga Beverage Group Inc), Agreement and Plan of Merger (Saratoga Beverage Group Inc)
Indemnification of Directors. (a) From and after the Effective TimeEach person who was or is made a party to, Parent and Surviving Corporation shall each defendor is threatened to be made a party to, indemnify and advance costs and expenses (including reasonable attorneys' feesor is involved in, disbursements and expenses) and hold harmless each present and former director and officer of the Company any threatened, pending or its Subsidiaries determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, settlements or liabilities (collectively, "Costs") incurred in connection with any claim, completed action, suit, proceeding suit or investigationproceeding, whether formal or informal, whether of a civil, criminal, administrative or investigativeinvestigative nature (hereinafter a "proceeding"), arising after by reason of the Effective Time and out fact that he or she, or a person of whom he or pertaining to matters existing she is the legal representative, is or occurring at or prior to was a Director of the Effective Time, including without limitation, the authorization of this Agreement and the transactions contemplated herebyCorporation, whether asserted the basis of such proceeding is an alleged action or claimed prior toinaction in an official capacity or in any other capacity while serving as a Director, at or after shall be indemnified and held harmless by the Effective Time, Corporation to the fullest extent that the Company would have been permitted permissible under Delaware law, as the same exists or may hereafter exist in the future (but, in the case of any future change, only to the extent that such change permits the Corporation to provide broader indemnification rights than the law permitted prior to such change), against all costs, charges, expenses, liabilities and its certificate losses (including, without limitation, attorneys' fees, judgments, fines, Employee Retirement Income Security Act of incorporation 1974 ("ERISA") excise taxes, or by-laws penalties and amounts paid or to be paid in effect on the date hereof to indemnify settlement) reasonably incurred or suffered by such person (in connection therewith, and also advance expenses such indemnification shall continue as incurred to a person who has ceased to be a Director and shall inure to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification); provided that any determination required by law to be made with respect to whether an officer's benefit of his or director's conduct complies with the standards set forth under Delaware law her heirs, executors and the Company's certificate of incorporation and by-laws as of the date hereof shall be made by independent counsel selected jointly by Parent and the Indemnified Partyadministrators.
(b) In the event of any claim, action, suit, proceeding or investigation in which indemnification pursuant to Section 6.10(a) is sought (whether arising before or after the Effective Time), (i) Parent The Corporation shall have the right to assume the defense thereof and Parent shall not be liable to any Indemnified Parties for any legal pay expenses of other counsel or any other expenses subsequently actually incurred by such Indemnified Parties in connection with the defense thereof, except that if Parent elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts any proceeding in advance of interest between Parent and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them and reasonably satisfactory to Parent, and Parent shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are receivedits final disposition; provided, however, that Parent if Delaware law then requires, the payment of such expenses incurred in advance of the final disposition of a proceeding shall be obligated pursuant made only upon delivery to this paragraph (b) the Corporation of an undertaking, by or on behalf of such Director or officer, to pay for only one firm of counsel for repay all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, (ii) the Indemnified Parties will cooperate in the defense of any such matter unless counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest making such cooperation inadvisable and (iii) Parent shall not be liable for any settlement effected without its prior written consent (which shall not be unreasonably withheld); and provided further that Parent shall not have any obligation hereunder to any Indemnified Party when and amounts so advanced if a court of competent jurisdiction it shall ultimately determine, and be determined that such determination shall have become final and nonappealable, that the indemnification of such Indemnified Party in the manner contemplated hereby Director or officer is prohibited by applicable law. If a court of competent jurisdiction determines that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law, then Parent shall provide indemnification not entitled to the maximum extent and in such manner as is permissible under applicable law. If such indemnity is completely unavailable with respect to any Indemnified Party, Parent and the Indemnified Party shall contribute to the amount payable in such proportion as is appropriate to reflect relative faults and benefitsbe indemnified.
(c) For If a period claim under subsection 9.2(a) hereof is not paid in full by the Corporation within thirty (30) days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of six the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. Neither the failure of the Corporation (6including its Board of Directors, independent legal counsel or its stockholders) years following to have made a determination that indemnification of the Effective Timeclaimant is permissible in the circumstances because the claimant has met the applicable standard of conduct, Parent will provide if any, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel or its stockholders) that the claimant has not met the standard of conduct, shall be a defense to the persons who served as directors action or officers create a presumption that the claimant has not met the standard of Company or any of the Company's Subsidiaries on or before the Effective Time, insurance against liabilities and claims (and related expenses) made against them resulting from their service as such prior to the Effective Time. Such coverage may be provided by means of an extended reporting period endorsement to the policy presently issued to the Company by the present carrier for the Company, or by such other means which shall provide substantially equivalent coverage to the personsconduct.
Appears in 2 contracts
Samples: Rights Agreement (Caremark Rx Inc), Rights Agreement (Caremark Rx Inc)
Indemnification of Directors. (a) From and after the Effective TimeEach person who was or is made a party or is threatened to be made a party or is involved in any threatened, Parent and Surviving Corporation shall each defend, indemnify and advance costs and expenses (including reasonable attorneys' fees, disbursements and expenses) and hold harmless each present and former director and officer of the Company pending or its Subsidiaries determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, settlements or liabilities (collectively, "Costs") incurred in connection with any claim, completed action, suit, proceeding suit or investigationproceeding, whether formal or informal, whether of a civil, criminal, administrative or investigativeinvestigative nature (hereinafter a "proceeding"), arising after by reason of the Effective Time and out fact that he or she, or a person of whom he or pertaining to matters existing she is the legal representative, is or occurring at or prior to was a Director of the Effective Time, including without limitation, the authorization of this Agreement and the transactions contemplated herebyCorporation, whether asserted the basis of such proceeding is an alleged action or claimed prior toinaction in an official capacity or in any other capacity while serving as a Director, at or after shall be indemnified and held harmless by the Effective Time, Corporation to the fullest extent that the Company would have been permitted permissible under Delaware law, as the same exists or may hereafter exist in the future (but, in the case of any future change, only to the extent that such change permits the Corporation to provide broader indemnification rights than the law permitted prior to such charge), against all costs, charges, expenses, liabilities and its certificate losses (including, without limitation, attorneys' fees, judgments, fines, Employee Retirement Income Security Act of incorporation 1974 ("ERISA") excise taxes, or by-laws penalties and amounts paid or to be paid in effect on the date hereof to indemnify settlement) reasonably incurred or suffered by such person (in connection therewith and also advance expenses such indemnification shall continue as incurred to a person who has ceased to be a Director and shall inure to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification); provided that any determination required by law to be made with respect to whether an officer's benefit of his or director's conduct complies with the standards set forth under Delaware law her heirs, executors and the Company's certificate of incorporation and by-laws as of the date hereof shall be made by independent counsel selected jointly by Parent and the Indemnified Partyadministrators.
(b) In the event of any claim, action, suit, proceeding or investigation in which indemnification pursuant to Section 6.10(a) is sought (whether arising before or after the Effective Time), (i) Parent The Corporation shall have the right to assume the defense thereof and Parent shall not be liable to any Indemnified Parties for any legal pay expenses of other counsel or any other expenses subsequently actually incurred by such Indemnified Parties in connection with the defense thereof, except that if Parent elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts any proceeding in advance of interest between Parent and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them and reasonably satisfactory to Parent, and Parent shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are receivedits final disposition; provided, however, that Parent if Delaware law then requires, the payment of such expenses incurred in advance of the final disposition of a proceeding shall be obligated pursuant made only upon delivery to this paragraph (b) the Corporation of an undertaking, by or on behalf of such Director or officer, to pay for only one firm of counsel for repay all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, (ii) the Indemnified Parties will cooperate in the defense of any such matter unless counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest making such cooperation inadvisable and (iii) Parent shall not be liable for any settlement effected without its prior written consent (which shall not be unreasonably withheld); and provided further that Parent shall not have any obligation hereunder to any Indemnified Party when and amounts so advanced if a court of competent jurisdiction it shall ultimately determine, and be determined that such determination shall have become final and nonappealable, that the indemnification of such Indemnified Party in the manner contemplated hereby Director or officer is prohibited by applicable law. If a court of competent jurisdiction determines that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law, then Parent shall provide indemnification not entitled to the maximum extent and in such manner as is permissible under applicable law. If such indemnity is completely unavailable with respect to any Indemnified Party, Parent and the Indemnified Party shall contribute to the amount payable in such proportion as is appropriate to reflect relative faults and benefitsbe indemnified.
(c) For If a period claim under subsection 9.2(a) hereof is not paid in full by the Corporation within thirty (30) days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of six the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. Neither the failure of the Corporation (6including its Board of Directors, independent legal counsel, or its stockholders) years following to have made a determination that indemnification of the Effective Timeclaimant is permissible in the circumstances because the claimant has met the applicable standard of conduct, Parent will provide if any, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel or its stockholders) that the claimant has not met the standard of conduct, shall be a defense to the persons who served as directors action or officers create a presumption that the claimant has not met the standard of Company or any of the Company's Subsidiaries on or before the Effective Time, insurance against liabilities and claims (and related expenses) made against them resulting from their service as such prior to the Effective Time. Such coverage may be provided by means of an extended reporting period endorsement to the policy presently issued to the Company by the present carrier for the Company, or by such other means which shall provide substantially equivalent coverage to the personsconduct.
Appears in 1 contract
Samples: Rights Agreement (Medpartners Inc)
Indemnification of Directors. (a) From and after The capitalized terms in this paragraph shall have the Effective Time, Parent and Surviving Corporation meanings set forth in RCW 23B.08.500.
(b) This corporation shall each defend, indemnify and advance costs and expenses (including reasonable attorneys' fees, disbursements and expenses) and hold harmless each present and former individual who is or was a director and or officer of this corporation or who, while a Director or officer of this corporation, is or was serving at the Company request of this corporation as a director, officer, partner, trustee, employee, or its Subsidiaries determined as agent of the Effective Time (the "Indemnified Parties")another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, settlements or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising after the Effective Time and out of or pertaining to matters existing or occurring at or prior to the Effective Timeall Liability, including without limitationreimbursement and advances of reasonable Expenses, the authorization of this Agreement and the transactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Timeincurred with respect to a Proceeding, to the fullest extent permitted by law, without regard to the limitations in RCW 23B.08.510 through 23B.08.550; provided that no such indemnity shall indemnify any Director or officer from or on account of (1) acts or omissions of the Company would have been permitted under Delaware law Director or officer finally adjudged to be intentional misconduct or a knowing violation of law; (2) conduct of the Director or officer finally adjudged to be in violation of RCW 23B.08.310; or (3) any transaction with respect to which it was finally adjudged that such Director or officer personally received a benefit in money, property, or services to which the Director or officer was not legally entitled. If, after the effective date of this paragraph, the Act is amended to authorize further indemnification of Directors or officers, then Directors and its certificate officers of incorporation or by-laws in effect on the date hereof to indemnify such person (and also advance expenses as incurred this corporation shall be indemnified to the fullest extent permitted under applicable law provided by the person Act as so amended. To the extent permitted by law, the rights 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); provided that any determination required by law to be made with respect to whether an officer's or director's conduct complies with the standards set forth under Delaware law indemnification and the Company's certificate advance of incorporation and by-laws as of the date hereof shall be made by independent counsel selected jointly by Parent and the Indemnified Party.
(b) In the event of any claim, action, suit, proceeding or investigation reasonable Expenses conferred in which indemnification pursuant to Section 6.10(a) is sought (whether arising before or after the Effective Time), (i) Parent shall have the right to assume the defense thereof and Parent this paragraph shall not be liable to any Indemnified Parties for any legal expenses exclusive of other counsel or any other expenses subsequently incurred by such Indemnified Parties right which any individual may have or hereafter acquire under any statute, provision of the Bylaws, agreement, vote of shareholders or disinterested directors, or otherwise. The right to indemnification conferred in connection with the defense thereof, except that if Parent elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Parent and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them and reasonably satisfactory to Parent, and Parent shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that Parent this paragraph shall be obligated pursuant a contract right upon which each Director or officer shall be presumed to have relied in determining to serve or to continue to serve as such. Any amendment to or repeal of this paragraph (b) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, (ii) the Indemnified Parties will cooperate in the defense of any such matter unless counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest making such cooperation inadvisable and (iii) Parent shall not be liable adversely affect any right or protection of a Director or officer of this corporation for any settlement effected without its prior written consent (which shall not be unreasonably withheld); and provided further that Parent shall not have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and nonappealable, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. If a court of competent jurisdiction determines that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law, then Parent shall provide indemnification to the maximum extent and in such manner as is permissible under applicable law. If such indemnity is completely unavailable or with respect to any Indemnified Party, Parent and the Indemnified Party shall contribute acts or omissions of such Director or officer occurring prior to the amount payable in such proportion as is appropriate to reflect relative faults and benefitsamendment or repeal.
(c) For This corporation may purchase and maintain insurance on behalf of an individual who is or was a period director, officer, employee, or agent of six this corporation or, who, while a director, officer, employee, or agent of this corporation, is or was serving at the request of this corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise against Liability asserted against or incurred by the individual in that capacity or arising from the individual’s status as a director, officer, employee, or agent, whether or not this corporation would have power to indemnify the individual against such Liability under RCW 23B.08.510 or 23B.08.520.
(6d) years following the Effective Time, Parent will provide to the persons who served as directors or officers If any provision of Company this paragraph or any application thereof shall be invalid, unenforceable, or contrary to applicable law, the remainder of this paragraph, and the Company's Subsidiaries on application of such provisions to individuals or before the Effective Timecircumstances other than those as to which it is held invalid, insurance against liabilities unenforceable, or contrary to applicable law, shall not be affected thereby.
(e) The board of directors may take such action as is necessary to carry out these indemnification and claims (expense advancement provisions. It is expressly empowered to adopt, approve, and related expenses) made against them resulting amend from their service time to time such Bylaws, resolutions, contracts, or further indemnification and expense advancement arrangements as such prior to the Effective Timemay be permitted by law, implementing these provisions. Such coverage may Bylaws, resolutions, contracts or further arrangements shall include but not be provided by means limited to implementing the manner in which determinations as to any indemnity or advancement of an extended reporting period endorsement to the policy presently issued to the Company by the present carrier for the Company, or by such other means which expenses shall provide substantially equivalent coverage to the personsbe made.
Appears in 1 contract
Indemnification of Directors. (a) From and after the Effective Time, Parent and Surviving Corporation shall each defend, indemnify and advance costs and expenses (including reasonable attorneys' fees, disbursements and expenses) and hold harmless each present and former director and officer of the Company or its Subsidiaries determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, settlements or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising after the Effective Time and out of or pertaining to matters existing or occurring at or prior to the Effective Time, including without limitation, the authorization of this Agreement and the transactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under Delaware law and its certificate of incorporation or by-laws in effect on the date hereof to indemnify such person (and also advance expenses as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification); provided that any determination required by law to be made with respect to whether an officer's or director's conduct complies with the standards set forth under Delaware law and the Company's 44 46 certificate of incorporation and by-laws as of the date hereof shall be made by independent counsel selected jointly by Parent and the Indemnified Party.
(b) In the event of any claim, action, suit, proceeding or investigation in which indemnification pursuant to Section 6.10(a) is sought (whether arising before or after the Effective Time), (i) Parent shall have the right to assume the defense thereof and Parent shall not be liable to any Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Parent elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Parent and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them and reasonably satisfactory to Parent, and Parent shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that Parent shall be obligated pursuant to this paragraph (b) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, (ii) the Indemnified Parties will cooperate in the defense of any such matter unless counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest making such cooperation inadvisable and (iii) Parent shall not be liable for any settlement effected without its prior written consent (which shall not be unreasonably withheld); and provided further that Parent shall not have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and nonappealable, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. If a court of competent jurisdiction determines that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law, then Parent shall provide indemnification to the maximum extent and in such manner as is permissible under applicable law. If such indemnity is completely unavailable with respect to any Indemnified Party, Parent and the Indemnified Party shall contribute to the amount payable in such proportion as is appropriate to reflect relative faults and benefits.
(c) For a period of six (6) years following the Effective Time, Parent will provide to the persons who served as directors or officers of Company or any of the Company's Subsidiaries on or before the Effective Time, insurance against liabilities and claims (and related expenses) made against them resulting from their service as such prior to the Effective Time. Such coverage may be provided by means of an extended reporting period endorsement to the policy presently issued to the Company by the present carrier for the Company, or by such other means which shall provide substantially equivalent coverage to the persons.
Appears in 1 contract
Indemnification of Directors. OFFICERS, EMPLOYEES AND AGENTS: (aa)(i) From The corporation, to the full extent permitted, and after in the Effective Timemanner required by the laws of the state of Delaware, Parent and Surviving Corporation as in effect at the time of the adoption of this revised Section III-11 or as such laws may be amended from time to time, shall each defendindemnify any person who was or is made a party to or is threatened to be made a party to any threatened, indemnify and advance costs and expenses pending or completed action, suit or proceeding (including reasonable attorneys' fees, disbursements and expenses) and hold harmless each present and former director and officer of the Company or its Subsidiaries determined as of the Effective Time (the "Indemnified Parties"any appeal thereof), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, settlements or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative (other than an action by or in the right of the corporation), arising after by reason of the Effective Time and out of or pertaining to matters existing or occurring at or prior to the Effective Time, including without limitation, the authorization of this Agreement and the transactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under Delaware law and its certificate of incorporation or by-laws in effect on the date hereof to indemnify such person (and also advance expenses as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined fact that such person is not entitled to indemnificationor was a director or officer of the corporation, or, if at a time when he was a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, partner, trustee, fiduciary, employee or agent (a "Subsidiary Officer") of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise (an "Affiliated Entity"); provided that any determination required , against expenses (including attorneys' fees), costs, judgments, fines, penalties and amounts paid in settlement actually and reasonably incurred by law such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be made in or not opposed to the best interest of the corporation, and, with respect to whether an officer's any criminal action or director's proceeding, had no reasonable cause to believe his or her conduct complies with the standards set forth under Delaware law and the Company's certificate of incorporation and by-laws as of the date hereof shall be made by independent counsel selected jointly by Parent and the Indemnified Party.
(b) In the event of any claim, action, suit, proceeding or investigation in which indemnification pursuant to Section 6.10(a) is sought (whether arising before or after the Effective Time), (i) Parent shall have the right to assume the defense thereof and Parent shall not be liable to any Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Parent elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Parent and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them and reasonably satisfactory to Parent, and Parent shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are receivedwas unlawful; provided, however, that Parent shall be obligated pursuant to this paragraph (b) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, (ii) the Indemnified Parties will cooperate in the defense of any such matter unless counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest making such cooperation inadvisable and (iii) Parent corporation shall not be liable for obligated to indemnify against any amount paid in settlement effected without its prior written unless the corporation has consented to such settlement, which consent (which shall not be unreasonably withheld); and provided further that Parent . The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not have any obligation hereunder to any Indemnified Party when and if not, of itself, create a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and nonappealable, presumption that the indemnification of person did not act in good faith and in a manner which such Indemnified Party person reasonably believed to be in the manner contemplated hereby is prohibited by applicable law. If a court of competent jurisdiction determines that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law, then Parent shall provide indemnification or not opposed to the maximum extent and in such manner as is permissible under applicable law. If such indemnity is completely unavailable best interests of the corporation, and, with respect to any Indemnified Partycriminal action or proceeding, Parent and the Indemnified Party shall contribute that such person had reasonable cause to believe that his conduct was unlawful. Notwithstanding anything to the amount payable contrary in the foregoing provisions of this subparagraph (i) and except for any action, suit or proceeding brought on behalf of a person to enforce the right to indemnification hereunder or otherwise, a person shall not be entitled, as a matter of right, to indemnification pursuant to this subparagraph (i) against costs or expenses incurred in connection with any action, suit or proceeding commenced by such proportion as person against any person who is appropriate to reflect relative faults and benefits.
(c) For or was a period of six (6) years following the Effective Timedirector, Parent will provide to the persons who served as directors officer, fiduciary, employee or officers of Company or any agent of the Company's Subsidiaries on corporation or before the Effective Timea Subsidiary Officer of an Affiliated Entity, insurance against liabilities and claims (and related expenses) made against them resulting from their service as but such prior to the Effective Time. Such coverage indemnification may be provided by means the corporation in any specific case as permitted by paragraph (f) of an extended reporting period endorsement to the policy presently issued to the Company by the present carrier for the Company, or by such other means which shall provide substantially equivalent coverage to the personsthis Section III- 11.
Appears in 1 contract
Indemnification of Directors. (ai) From The Company shall indemnify, defend and after hold harmless each person who serves as a member of the Effective TimeBoard or committee thereof from and against all losses, Parent and Surviving Corporation shall each defendclaims, indemnify and advance costs damages and expenses (including reasonable attorneys' fees, disbursements fees and expenses) to the fullest extent permitted from time to time under applicable Law (as defined in the Purchase Agreement).
(ii) To the fullest extent permitted from time to time under applicable Law, the Company shall pay, on an as-incurred basis, the reasonable fees and hold harmless each present and former director and officer expenses of the Company or its Subsidiaries determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses directors (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, settlements or liabilities fees and expenses) in advance of the final disposition of any Litigation (collectively, "Costs"as defined in the Purchase Agreement) incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising after that is the Effective Time and out subject of or pertaining to matters existing or occurring at or prior to the Effective Time, including without limitation, the authorization of this Agreement and the transactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under Delaware law and its certificate of incorporation or by-laws in effect on the date hereof to indemnify such person (and also advance expenses as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled right to indemnification); provided that any determination required by law to be made with respect to whether an officer's or director's conduct complies with the standards set forth under Delaware law and the Company's certificate of incorporation and by-laws as of the date hereof shall be made by independent counsel selected jointly by Parent and the Indemnified Party.
(biii) In the event of any claimLitigation, action, suit, proceeding or investigation in which indemnification pursuant subject to Section 6.10(a) is sought (whether arising before or after the Effective Time), (i) Parent provisions of any insurance policy the director shall have the right be entitled to assume control the defense thereof and Parent shall not be liable with counsel of the director's own choosing reasonably acceptable to any Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Parent elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Parent Company and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them and reasonably satisfactory to Parent, and Parent Company shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that Parent shall be obligated pursuant to this paragraph (b) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, (ii) the Indemnified Parties will cooperate in the defense of thereof; provided, that, such director shall have no power to settle or compromise any such matter unless counsel Litigation for which indemnification is being sought without the Indemnified Parties advises that there are issues which raise conflicts of interest making such cooperation inadvisable and (iii) Parent shall not be liable for any settlement effected without its prior written consent (of the Company which shall not be unreasonably withheld); .
(iv) The Articles of Incorporation and provided further that Parent By-Laws of the Company shall not have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and nonappealable, that contain provisions for the indemnification and exculpation of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. If a court of competent jurisdiction determines that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law, then Parent shall provide indemnification directors to the maximum extent permitted under applicable Law, and shall be amended as and when necessary to effectuate the foregoing.
(v) The Company shall cause to be maintained in effect, with financially sound insurers, a policy of directors' and officers' liability insurance on terms and amounts substantially similar to the directors' and officers' liability insurance maintained as of the date hereof. Upon the Company's initial public offering, the Company shall expand such directors' and officers' liability insurance so that it shall be on such terms and in such manner amounts as is permissible under applicable law. If such indemnity is completely unavailable with respect to any Indemnified Party, Parent and the Indemnified Party shall contribute to the amount payable in such proportion as is appropriate to reflect relative faults and benefitsare customary for similarly situated public companies.
(c) For a period of six (6) years following the Effective Time, Parent will provide to the persons who served as directors or officers of Company or any of the Company's Subsidiaries on or before the Effective Time, insurance against liabilities and claims (and related expenses) made against them resulting from their service as such prior to the Effective Time. Such coverage may be provided by means of an extended reporting period endorsement to the policy presently issued to the Company by the present carrier for the Company, or by such other means which shall provide substantially equivalent coverage to the persons.
Appears in 1 contract
Samples: Co Sale and Board Representation Agreement (Capella Education Co)
Indemnification of Directors. OFFICERS, EMPLOYEES AND AGENTS: (aa)(i) From The corporation, to the full extent permitted, and after in the Effective Timemanner required by the laws of the state of Delaware, Parent and Surviving Corporation as in effect at the time of the adoption of this revised Section III-11 or as such laws may be amended from time to time, shall each defendindemnify any person who was or is made a party to or is threatened to be made a party to any threatened, indemnify and advance costs and expenses pending or completed action, suit or proceeding (including reasonable attorneys' fees, disbursements and expenses) and hold harmless each present and former director and officer of the Company or its Subsidiaries determined as of the Effective Time (the "Indemnified Parties"any appeal thereof), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, settlements or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative (other than an action by or in the right of the corporation), arising after by reason of the Effective Time and out of or pertaining to matters existing or occurring at or prior to the Effective Time, including without limitation, the authorization of this Agreement and the transactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under Delaware law and its certificate of incorporation or by-laws in effect on the date hereof to indemnify such person (and also advance expenses as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined fact that such person is not entitled to indemnificationor was a director or officer of the corporation, or, if at a time when he was a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, partner, trustee, fiduciary, employee or agent (a "Subsidiary Officer") of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise (an "Affiliated Entity"); provided that any determination required , against expenses (including attorneys' fees), costs, judgments, fines, penalties and amounts paid in settlement actually and reasonably incurred by law such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be made in or not opposed to the best interest of the corporation, and, with respect to whether an officer's any criminal action or director's proceeding, had no reasonable cause to believe his or her conduct complies with the standards set forth under Delaware law and the Company's certificate of incorporation and by-laws as of the date hereof shall be made by independent counsel selected jointly by Parent and the Indemnified Party.
(b) In the event of any claim, action, suit, proceeding or investigation in which indemnification pursuant to Section 6.10(a) is sought (whether arising before or after the Effective Time), (i) Parent shall have the right to assume the defense thereof and Parent shall not be liable to any Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Parent elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Parent and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them and reasonably satisfactory to Parent, and Parent shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are receivedwas unlawful; provided, however, that Parent shall be obligated pursuant to this paragraph (b) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, (ii) the Indemnified Parties will cooperate in the defense of any such matter unless counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest making such cooperation inadvisable and (iii) Parent corporation shall not be liable for obligated to indemnify against any amount paid in settlement effected without its prior written unless the corporation has consented to such settlement, which consent (which shall not be unreasonably withheld); and provided further that Parent . The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not have any obligation hereunder to any Indemnified Party when and if not, of itself, create a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and nonappealable, presumption that the indemnification of person did not act in good faith and in a manner which such Indemnified Party person reasonably believed to be in the manner contemplated hereby is prohibited by applicable law. If a court of competent jurisdiction determines that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law, then Parent shall provide indemnification or not opposed to the maximum extent and in such manner as is permissible under applicable law. If such indemnity is completely unavailable best interests of the corporation, and, with respect to any Indemnified Partycriminal action or proceeding, Parent and the Indemnified Party shall contribute that such person had reasonable cause to believe that his conduct was unlawful. Notwithstanding anything to the amount payable contrary in the foregoing provisions of this subparagraph (i) and except for any action, suit or proceeding brought on behalf of a person to enforce the right to indemnification hereunder or otherwise, a person shall not be entitled, as a matter of right, to indemnification pursuant to this subparagraph (i) against costs or expenses incurred in connection with any action, suit or proceeding commenced by such proportion as person against any person who is appropriate to reflect relative faults and benefits.
(c) For or was a period of six (6) years following the Effective Timedirector, Parent will provide to the persons who served as directors officer, fiduciary, employee or officers of Company or any agent of the Company's Subsidiaries on corporation or before the Effective Timea Subsidiary Officer of an Affiliated Entity, insurance against liabilities and claims (and related expenses) made against them resulting from their service as but such prior to the Effective Time. Such coverage indemnification may be provided by means the corporation in any specific case as permitted by paragraph (f) of an extended reporting period endorsement to the policy presently issued to the Company by the present carrier for the Company, or by such other means which shall provide substantially equivalent coverage to the personsthis Section III-11.
Appears in 1 contract
Indemnification of Directors. 10.1 The corporation shall indemnify its directors to the full extent permitted by the Washington Business Corporation Act now or hereafter in force. However, such indemnity shall not apply on account of:
(a) From and after the Effective Time, Parent and Surviving Corporation shall each defend, indemnify and advance costs and expenses (including reasonable attorneys' fees, disbursements and expenses) and hold harmless each present and former director and officer Acts or omissions of the Company or its Subsidiaries determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, settlements or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising after the Effective Time and out of or pertaining to matters existing or occurring at or prior to the Effective Time, including without limitation, the authorization of this Agreement and the transactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under Delaware law and its certificate of incorporation or by-laws in effect on the date hereof to indemnify such person (and also advance expenses as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification); provided that any determination required by law director finally adjudged to be made with respect to whether an officer's intentional misconduct or director's conduct complies with the standards set forth under Delaware law and the Company's certificate a knowing violation of incorporation and by-laws as of the date hereof shall be made by independent counsel selected jointly by Parent and the Indemnified Party.law;
(b) In Conduct of the event director finally adjudged to be in violation of any claim, action, suit, proceeding or investigation in which indemnification pursuant to Section 6.10(a) is sought (whether arising before or after the Effective Time), (i) Parent shall have the right to assume the defense thereof and Parent shall not be liable to any Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Parent elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Parent and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them and reasonably satisfactory to Parent, and Parent shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are receivedRCW 23B.08.310; provided, however, that Parent shall be obligated pursuant to this paragraph (b) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, (ii) the Indemnified Parties will cooperate in the defense of any such matter unless counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest making such cooperation inadvisable and (iii) Parent shall not be liable for any settlement effected without its prior written consent (which shall not be unreasonably withheld); and provided further that Parent shall not have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and nonappealable, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. If a court of competent jurisdiction determines that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law, then Parent shall provide indemnification to the maximum extent and in such manner as is permissible under applicable law. If such indemnity is completely unavailable with respect to any Indemnified Party, Parent and the Indemnified Party shall contribute to the amount payable in such proportion as is appropriate to reflect relative faults and benefits.or
(c) For Any transaction with respect to which it was finally adjudged that such director personally received a period of six (6) years following benefit in money, property, or services to which the Effective Time, Parent will provide director was not legally entitled. The corporation shall advance expenses for such persons pursuant to the persons who served terms set forth in the Bylaws, or in a separate directors' resolution or contract.
10.2 The Board of Directors may take such action as directors is necessary to carry out these indemnification and expense advancement provisions. It is expressly empowered to adopt, approve, and amend from time to time such Bylaws, resolutions, contracts, or officers further indemnification and expense advancement arrangements as may be permitted by law, implementing these provisions. Such Bylaws, resolutions, contracts or further arrangements shall include but not be limited to implementing the manner in which determinations as to any indemnity or advancement of Company expenses shall be made.
10.3 No amendment or repeal of this Article shall apply to or have any effect on any right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal. Exhibit A2 CERTIFICATE OF MERGER OF QUANEX FOUR, INC. INTO MIKRON INDUSTRIES, INC. Pursuant to Section 252(c) of the Company's Subsidiaries Delaware General Corporation Law, the undersigned, Xxxxxxx X. Xxxxxxxx, Chairman of Mikron Industries, Inc., a Washington corporation, hereby certifies that:
1. The constituent corporations are Quanex Four, Inc., a Delaware corporation, and Mikron Industries, Inc., a Washington corporation.
2. An agreement and plan of merger has been adopted, approved, certified, executed and acknowledged by each of the constituent corporations in accordance with Section 252(c) of the Delaware General Corporation Law and RCW 23B.11.030 of the Washington Business Corporation Act.
3. The name of the surviving corporation is Mikron Industries, Inc.
4. The articles of incorporation of Mikron Industries, Inc. shall be the articles of incorporation of the surviving corporation, and the surviving corporation is a Washington corporation.
5. The executed agreement and plan of merger is on file at the principal office of Mikron Industries, Inc. at 0000 - 0xx Xxxxxx Xxxxx, Xxxx, WA 98032-2991.
6. A copy of the agreement and plan of merger will be furnished by Mikron Industries, Inc., on request and without cost, to any stockholder of any constituent corporation.
7. Mikron Industries, Inc. agrees that it may be served with process in the State of Delaware in any proceeding for enforcement of any obligation of Quanex Four, Inc. as well as for enforcement of any obligation of Mikron Industries, Inc. arising from the merger of Quanex Four, Inc. into Mikron Industries, Inc., including any suit or before other proceeding to enforce the Effective Timeright of any stockholders as determined in appraisal proceedings pursuant to Section 262 of the Delaware General Corporation Law, insurance against liabilities and claims (and related expenses) made against them resulting from their irrevocably appoints the Secretary of State of Delaware as its agent to accept service as of process in any such prior suit or other proceedings. A copy of such service of process shall be mailed by the Secretary of State of Delaware to the Effective Timeprincipal office of Mikron Industries, Inc. at 0000 - 0xx Xxxxxx Xxxxx, Xxxx, WA 98032-2991. Such coverage may be provided by means of an extended reporting period endorsement to the policy presently issued to the Company by the present carrier for the CompanyDated: December , or by such other means which shall provide substantially equivalent coverage to the persons.2004 Xxxxxxx X. Xxxxxxxx Chairman Exhibit B ESCROW AGREEMENT
Appears in 1 contract
Samples: Merger Agreement (Quanex Corp)
Indemnification of Directors. (a) From and after the Effective Time, Parent and Surviving Corporation shall each defend, indemnify and advance costs and expenses (including reasonable attorneys' fees, disbursements and expenses) and hold harmless each present and former director and officer of the Company or its Subsidiaries determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, settlements or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising after the Effective Time and out of or pertaining to matters existing or occurring at or prior to the Effective Time, including without limitation, the authorization of this Agreement and the transactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under Delaware law and its certificate of incorporation or by-laws in effect on the date hereof to indemnify such person (and also advance expenses as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification); provided that any determination required by law to be made with respect to whether an officer's or director's conduct complies with the standards set forth under Delaware law and the Company's certificate of incorporation and by-laws as of the date hereof shall be made by independent counsel selected jointly by Parent and the Indemnified Party.
(b) In the event of any claim, action, suit, proceeding or investigation in which indemnification pursuant to Section 6.10(a) is sought (whether arising before or after the Effective Time), (i) Parent shall have the right to assume the defense thereof and Parent shall not be liable to any Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Parent elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Parent and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them and reasonably satisfactory to Parent, and Parent shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that Parent shall be obligated pursuant to this paragraph (b) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, (ii) the Indemnified Parties will cooperate in the defense of any such matter unless counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest making such cooperation inadvisable and (iii) Parent shall not be liable for any settlement effected without its prior written consent (which shall not be unreasonably withheld); and provided further that Parent shall not have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and nonappealable, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. If a court of competent jurisdiction determines that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law, then Parent shall provide indemnification to the maximum extent and in such manner as is permissible under applicable law. If such indemnity is completely unavailable with respect to any Indemnified Party, Parent and the Indemnified Party shall contribute to the amount payable in such proportion as is appropriate to reflect relative faults and benefits.
(c) For a period of six (6) years following the Effective Time, Parent will provide to the persons who served as directors or officers of Company or any of the Company's Subsidiaries on or before the Effective Time, insurance against liabilities and claims (and related expenses) made against them resulting from their service as such prior to the Effective Time. Such coverage may be provided by means of an extended reporting period endorsement to the policy presently issued to the Company by the present carrier for the Company, or by such other means which shall provide substantially equivalent coverage to the persons.
Appears in 1 contract
Samples: Restated Agreement and Plan of Merger (Saratoga Beverage Group Inc)
Indemnification of Directors. (a) From and after the Effective Time, Parent and Surviving Corporation shall each defend, indemnify and advance costs and expenses (including reasonable attorneys' fees, disbursements and expenses) and hold harmless each present and former director and officer of the Company or its Subsidiaries determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, settlements or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising after the Effective Time and out of or pertaining to matters existing or occurring at or prior to the Effective Time, including without limitation, the authorization of this Agreement and the transactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under Delaware law and its certificate of incorporation or by-laws in effect on the date hereof to indemnify such person (and also advance expenses as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification); provided that any determination required by law to be made with respect to whether an officer's or director's conduct complies with the standards set forth under Delaware law and the Company's certificate of incorporation and by-laws as of the date hereof shall be made by independent counsel selected jointly by Parent and the Indemnified Party.
(b) In the event of any claim, action, suit, proceeding or investigation in which indemnification pursuant to Section 6.10(a) is sought (whether arising before or after the Effective Time), (i) Parent shall have the right to assume the defense thereof and Parent shall not be liable to any Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Parent elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Parent and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them and reasonably satisfactory to Parent, and Parent shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that Parent shall be obligated pursuant to this paragraph (b) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, (ii) the Indemnified Parties will cooperate in the defense of any such matter unless counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest making such cooperation inadvisable and (iii) Parent shall not be liable for any settlement effected without its prior written consent (which shall not be unreasonably withheld); and provided further that Parent shall not have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and nonappealable, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. If a court of competent jurisdiction determines that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law, then Parent shall provide indemnification to the maximum extent and in such manner as is permissible under applicable law. If such indemnity is completely unavailable with respect to any Indemnified Party, Parent and the Indemnified Party shall contribute to the amount payable in such proportion as is appropriate to reflect relative faults and benefits.
(c) For a period of six (6) years following the Effective Time, Parent will provide to the persons who served as directors or officers of Company or any of the Company's Subsidiaries on or before the Effective Time, insurance against liabilities and claims (and related expenses) made against them resulting from their service as such prior to the Effective Time. Such coverage may be provided by means of an extended reporting period endorsement to the policy presently issued to the Company by the present carrier for the Company, or by such other means which shall provide substantially equivalent coverage to the persons.which
Appears in 1 contract
