Appears in 5 contracts

Samples: Merger Agreement (Bell Robert G.), Merger Agreement (Tanimoto Sarina), Merger Agreement (Silverback Therapeutics, Inc.)

Appears in 4 contracts

Samples: Agreement and Plan of Merger (Precision Therapeutics Inc.), Merger Agreement (Precision Therapeutics Inc.), Merger Agreement

Indemnification of Officers and Directors. (a) From and after the Chilean Effective ~~Time through~~ Time, in the ~~sixth (6th) anniversary~~ event of ~~the date on~~ any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, in which ~~the Effective Time occurs, each of Parent and the Surviving Corporation, jointly and severally, shall indemnify and hold harmless each person~~ any Person who is now, or has been at any time prior to the date ~~hereof~~of this Agreement, or who becomes prior to the Chilean Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ CorpBanca or ~~the Company and~~ Itaú Chile or any of their ~~respective Subsidiaries, respectively~~ Subsidiaries (the “~~D&O~~ Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Chilean Effective Time, CorpBanca shall indemnify, defend and hold harmless, to the fullest extent permitted by applicable Law, each such Indemnified Party against any Liability (including advancement of reasonable attorneys’ fees and expenses prior to the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by applicable Law)~~, against all claims, losses, liabilities, damages~~, judgments, fines and ~~reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred~~ amounts paid in settlement in connection with any such threatened or actual claim, action, suit, proceeding or investigation. (b) Without limiting the indemnification and other rights provided in clause (a), all rights to indemnification and all limitations on Liability existing in favor of the directors, officers and employees of CorpBanca or Itaú Chile and their respective Subsidiaries as provided in their respective Organizational Documents as in effect as of the date of this Agreement or in any indemnification agreement in existence on the date of this Agreement with CorpBanca or Itaú Chile or their Subsidiaries shall survive the Chilean Merger and shall continue in full force and effect to the fullest extent permitted by Law and shall be honored by CorpBanca and its Subsidiaries or their respective successors as if they were the indemnifying party thereunder, without any amendment thereto; provided that nothing contained in this Section 4.12 shall be deemed to preclude any liquidation, consolidation or merger of any CorpBanca or Itaú Chile Subsidiaries, in which case all of such rights to indemnification and limitations on Liability shall be deemed to so survive and continue notwithstanding any such liquidation, consolidation or merger. (c) CorpBanca, from and after the Chilean Effective Time, will directly or indirectly cause the Persons who served as directors or officers of CorpBanca or Itaú Chile, immediately prior to the Chilean Effective Time, to be covered by CorpBanca’s or Itaú Chile’s existing directors’ and officers’ liability insurance policy with respect to acts or omissions occurring prior to the Chilean Effective Time, which were committed by such officers and directors in their capacity as such; provided that (i) CorpBanca may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are not less advantageous than such policy, (ii) in no event shall CorpBanca be required to expend more than 250% per year of coverage of the amount currently expended by CorpBanca or Itaú Chile per year of coverage as of the date of this Agreement (the “Maximum Amount”) to maintain or procure insurance coverage pursuant hereto and (iii) if notwithstanding the use of reasonable best efforts to do so, CorpBanca is unable to maintain or obtain the insurance called for by this Section 4.11(c), CorpBanca shall obtain as much comparable insurance as available for the Maximum Amount. Such insurance coverage shall commence at the Chilean Effective Time and will be provided for a period of no less than six years after the Chilean Effective Time. In lieu of the foregoing, CorpBanca, upon the consent of the other Party, may obtain at or prior to the Chilean Effective Time a six-year “tail” policy under CorpBanca’s or Itaú Chile’s existing directors and officers insurance policy providing equivalent coverage to that described in the preceding sentence if and to the extent that the same may be obtained for an amount that, on an annual basis, does not exceed the Maximum Amount. (d) Any Indemnified Party wishing to claim indemnification under Section 4.12(a), upon learning of any claim, action, suit, proceeding or ~~investigation~~investigation described above, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request thereforshall promptly notify CorpBanca thereof; provided that ~~any such person~~ the failure so to ~~whom expenses are advanced provides an undertaking to Parent,~~ notify shall not affect the obligations of CorpBanca under Section 4.12(a) unless and to the extent ~~then required by the DGCL, to repay~~ that CorpBanca is actually and materially prejudiced as a result of such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directorsfailure. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 4.12 are intended to be ~~in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate~~ for the benefit of, and shall be enforceable by, each ~~of the D&O~~ Indemnified ~~Parties, their heirs~~ Party and ~~their representatives. (g) From and after the Effective Time, in the event Parent~~ his or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their her heirs and representatives~~, without the prior written consent of such affected D&O Indemnified Party or other person~~.

Appears in 3 contracts

Samples: Transaction Agreement, Transaction Agreement (Corpbanca/Fi), Transaction Agreement (Corpbanca/Fi)

Indemnification of Officers and Directors. (a) From and after the Effective ~~Time through the sixth~~ Time, (~~6th~~i) ~~anniversary~~ Parent agrees that it shall cause each of the ~~date on which~~ Surviving Corporation and Surviving Limited Partnerships to, (ii) the ~~Effective Time occurs~~Company, ~~each of Parent and~~ as the Surviving Corporation, ~~jointly~~ agrees that it shall and ~~severally~~shall cause each Surviving Limited Partnership to and (iii) each Operating Partnership as a Surviving Limited Partnership agrees that it shall, ~~shall~~ in each case of the foregoing clauses (i), (ii) and (iii) (as applicable), indemnify and hold harmless each ~~person who is now, or has been at any time prior to~~ present and former director and officer of the ~~date hereof, or who becomes prior to the Effective Time, a director, officer, fiduciary or agent of Parent or the Company and~~ Acquired Companies (in their ~~respective Subsidiaries, respectively~~ capacity as such) (the “~~D&O~~ Company Indemnified Parties”) against any costs or expenses (including reasonable and documented attorneys’ fees), ~~against all claims~~judgments, fines, losses, ~~liabilities~~claims, damages, ~~judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements,~~ liabilities or amounts paid in settlement incurred in connection with any ~~claim~~threatened, ~~action, suit, proceeding~~ pending or ~~investigation~~completed Proceeding, whether civil, criminal, administrative or investigative, arising out of, related to or by reason of the fact that he or she is or was a director or officer of any Acquired Company and arising out of or pertaining to ~~the fact that the D&O Indemnified Party is~~ matters existing or was a director, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the ~~Closing~~Effective Time, ~~now existing in favor~~ to the fullest extent permitted by the certificates of incorporation, bylaws, indemnification agreements and other organizational documents of the ~~current~~ Acquired Companies, as applicable, in effect as of the date of this Agreement (and made available to Parent prior to the date of this Agreement) and subject to Applicable Law. Parent also agrees to cause each of the Acquired Companies to, and each Acquired Company also agrees that it shall and shall cause each other Acquired Company to, promptly advance expenses as incurred by each present and former director and officer of the Acquired Companies (in their capacity as such) to the fullest extent permitted by the certificates of incorporation, bylaws, indemnification agreements and other organizational documents of the Acquired Companies, as applicable, in effect as of the date of this Agreement (and made available to Parent prior to the date of this Agreement) and subject to Applicable Law; provided that any such present or former director and officer to whom expenses are advanced provides an undertaking to repay such advance if it is determined by a final and non-appealable judgment of a court of competent jurisdiction that such person is not entitled to indemnification under Law. Without limiting the foregoing, Parent shall cause the Acquired Companies (A) to maintain for a period of not less than six (6) years from the Effective Time provisions in their respective certificates of incorporation, bylaws, certificates of limited partnership, limited partnership agreements and other organizational documents concerning the indemnification and exculpation of (and provisions relating to expense advancement to) the Persons who were directors or officers of any Acquired Company at any time prior to the Closing that are no less favorable to those Persons than the certificates of incorporation, bylaws, indemnification agreements and other organizational documents of the Acquired Companies, as applicable, in each case, as of the date of this Agreement (and made available to Parent prior to the date of this Agreement) and (B) not to amend, repeal or otherwise modify such provisions in any respect that would materially adversely affect the rights of those Persons thereunder, in each case, except as required by Applicable Law. (b) For a period of six (6) years from the Effective Time, Parent shall cause the Surviving Corporation and Surviving Limited Partnerships to, the Surviving Corporation shall and shall cause the Surviving Limited Partnerships to and the Surviving Limited Partnerships shall, in each case, maintain in effect directors’ and officers’ liability insurance covering those Persons who are currently covered by the Acquired Companies’ directors’ and officers’ liability insurance policies in effect as of the date hereof on terms not less favorable than the terms of such current insurance coverage; provided, ~~officers~~ however, that, in lieu of the foregoing, the Company may and (if the Company does not) Parent, the Surviving Corporation and the Surviving Limited Partnerships may cause coverage to be extended under the current directors’ and officers’ liability insurance by obtaining at or ~~employees~~prior to the Closing Date a prepaid, non-cancelable six (6)-year “tail” insurance policy(ies) (containing terms not less favorable than the terms of such current insurance coverage) with respect to matters existing or occurring at or prior to the Effective Time; provided, further, that the aggregate annual premium (or the aggregate premium, if a 6-year “tail” insurance policy(ies) is procured) shall not exceed three hundred percent (300%) of the aggregate annual premium paid in 2022 by the Company or any other Acquired Company, as applicable, for such insurance (the “Premium Cap”), and if the premium for such insurance would at any time exceed the Premium Cap, then the Parent, the Company, the Surviving Corporation or any of the Surviving Limited Partnerships (as the case may be) may cause to be maintained policies of insurance that, in the Parent’s, the Company’s, the Surviving Corporation’s or any of ~~Parent or~~ the Surviving Limited Partnerships’ (as the case may be) good faith determination, provide the maximum coverage available at an annual premium equal to the Premium Cap. Prior to the Closing, the Company ~~as provided~~ shall reasonably cooperate with Parent with respect to the insurance requirements set forth in ~~their respective Organizational Documents or~~ this Section 6.07. (c) Notwithstanding anything contained in ~~any agreement~~ this Agreement to the contrary, this Section 6.07 shall survive the consummation of the Public Merger and ~~shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to~~ the ~~rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of,~~ LP Mergers and shall be ~~enforceable by~~binding, ~~each~~ jointly and severally, on all successors and assigns of Parent, the ~~D&O Indemnified Parties, their heirs~~ Surviving Corporation and ~~their representatives. (g) From and after~~ the ~~Effective Time, in~~ Surviving Limited Partnerships. In the event ~~Parent~~ that Parent, the Surviving Corporation or the Surviving ~~Corporation~~ Limited Partnerships or any of their respective successors or assigns ~~(i)~~ consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or ~~merger,~~ merger or ~~(ii)~~ transfers or conveys all or substantially all of its properties and assets to any ~~Person~~Person or consummates any division transaction or conversion, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ Parent, the Surviving Corporation or the Surviving ~~Corporation~~Limited Partnerships, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7.~~ 6.07. (d) Parent shall cause the ~~Surviving Corporation~~ Acquired Companies to ~~perform all~~ honor each of the ~~obligations of the Surviving Corporation under this Section 5.7. The obligations set forth~~ covenants in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person6.07.

Appears in 3 contracts

Samples: Merger Agreement (Sculptor Capital Management, Inc.), Merger Agreement (Rithm Capital Corp.), Merger Agreement (Sculptor Capital Management, Inc.)

Indemnification of Officers and Directors. (a) All rights to indemnification, advancement of expenses and exculpation by the Company existing in favor of those Persons who are directors or officers of the Company as of the date of this Agreement or have been directors or officers of the Company in the past (the “Indemnified Persons”) for their acts and omissions occurring prior to the Effective Time, as provided in the certificate of incorporation and bylaws of the Company (as in effect as of the date of this Agreement) and as provided in the indemnification agreements between the Company and said Indemnified Persons (as set forth on Section 6.5(a) of the Company Disclosure Schedule and in effect as of the date of this Agreement) in the forms made available by the Company to Parent or Parent’s Representatives prior to the date of this Agreement, shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of such Indemnified Persons, and shall be observed by the Surviving Corporation and its Subsidiaries to the fullest extent available under Delaware or other applicable Legal Requirements for a period of six years from the Effective Time, and any claim made pursuant to such rights within such six-year period shall continue to be subject to this Section 6.5(a) and the rights provided under this Section 6.5(a) until disposition of such claim. (b) From the Effective Time ~~through~~ until the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, ~~each of~~ Parent and the Surviving ~~Corporation~~Corporation (together with their successors and assigns, ~~jointly and severally~~the “Indemnifying Parties”) shall, ~~shall~~ to the fullest extent that the Company would be able to under applicable Legal Requirements, indemnify and hold harmless each ~~person who is now,~~ Indemnified Person in his or ~~has been at any time prior to the date hereof,~~ her capacity as an officer or ~~who becomes prior to the Effective Time, a director, officer, fiduciary or agent~~ director of ~~Parent or~~ the Company ~~and their respective Subsidiaries, respectively (the “D&O Indemnified Parties”),~~ against all losses, claims, ~~losses~~damages, liabilities, ~~damages, judgments, fines and reasonable~~ fees, ~~costs and~~ expenses, ~~including attorneys’ fees and disbursements,~~ judgments or fines incurred by such Indemnified Person as an officer or director of the Company in connection with any ~~claim, action, suit, proceeding~~ pending or ~~investigation, whether civil, criminal, administrative~~ threatened Legal Proceeding based on or ~~investigative,~~ arising out of of, in whole or ~~pertaining to~~ in part, the fact that ~~the D&O~~ such Indemnified ~~Party~~ Person is or was a ~~director, officer, fiduciary~~ director or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations officer of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and ~~(ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant~~ pertaining to any ~~indemnification provisions under Parent’s Organizational Documents~~ and ~~pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties~~all matters pending, ~~with respect to claims arising out of matters occurring at~~ existing or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the ~~Closing~~Effective Time, ~~now existing~~ including any such matter arising under any claim with respect to the Transactions. Without limiting the foregoing, from the Effective Time until the sixth anniversary of the date on which the Effective Time occurs, the Indemnifying Parties shall also, to the fullest extent permitted under applicable Legal Requirements, advance reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Indemnified Persons in connection with matters for which such Indemnified Persons are eligible to be indemnified pursuant to this Section 6.5(b) within 15 days after receipt by Parent of a written request for such advance, subject to the execution by such Indemnified Persons of appropriate undertakings in favor of the ~~current~~ Indemnifying Parties to repay such advanced costs and expenses if it is ultimately determined in a final and non-appealable judgment of a court of competent jurisdiction that such Indemnified Person is not entitled to be indemnified under this Section 6.5(b). (c) From the Effective Time until the sixth anniversary of the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain, in effect, the existing policy of directors’ and officers’ liability insurance maintained by the Company as of the date of this Agreement (an accurate and complete summary of which has been made available by the Company to Parent or ~~former directors~~Parent’s Representatives prior to the date of this Agreement) for the benefit of the Indemnified Persons who are currently covered by such existing policy with respect to their acts and omissions occurring prior to the Effective Time in their capacities as directors and officers of the Company (as applicable), ~~officers~~ on terms with respect to coverage, deductibles and amounts no less favorable than the existing policy (or ~~employees~~at or prior to the Effective Time, ~~as the case may be, of~~ Parent or the Company may (through a nationally recognized insurance broker approved by Parent (such approval not to be unreasonably withheld, delayed or conditioned)) purchase a six-year “tail” policy for the existing policy effective as ~~provided~~ of the Effective Time) and if such “tail policy” has been obtained, it shall be deemed to satisfy all obligations to obtain and/or maintain insurance pursuant to this Section 6.5(c); provided, that in ~~their respective Organizational Documents or~~ no event shall the Surviving Corporation be required to expend in any ~~agreement shall survive~~ one year an amount in excess of 300% of the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and annual premium currently payable by the Company ~~by Law~~with respect to such current policy, ~~charter~~it being understood that if the annual premiums payable for such insurance coverage exceeds such amount, ~~statute, bylaw or agreement, and shall operate for the benefit of, and~~ Parent shall be ~~enforceable by, each of~~ obligated to cause the ~~D&O Indemnified Parties, their heirs and their representatives~~Surviving Corporation to obtain a policy with the greatest coverage available for a cost equal to such amount. (gd) ~~From and after the Effective Time, in~~ In the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or ~~entity~~ Entity of such consolidation or ~~merger,~~ merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, ~~proper provision~~ Parent shall ~~be made so~~ ensure that the successors and assigns of Parent or the Surviving Corporation, as the case may be, or at Parent’s option, Parent, shall ~~succeed to~~ assume the obligations set forth in this Section ~~5.7. Parent~~ 6.5. (e) The provisions of this Section 6.5 shall ~~cause~~ survive the ~~Surviving Corporation~~ acceptance of Shares for payment pursuant to ~~perform all~~ the Offer and the consummation of the ~~obligations~~ Merger and are (i) intended to be for the benefit of, and shall be enforceable by, each of the ~~Surviving Corporation under~~ Indemnified Persons and their successors, assigns and heirs and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. Unless required by applicable Legal Requirement, this Section ~~5.7. The obligations set forth in this Section 5.7 shall~~ 6.5 may not be ~~terminated~~amended, ~~amended~~ altered or ~~otherwise modified~~ repealed after the Offer Acceptance Time in such a manner as to adversely affect the rights of any ~~manner that adversely affects any D&O~~ Indemnified ~~Party,~~ Person or any ~~person who is a beneficiary under the policies referred to in this Section 5.7 and~~ of their successors, assigns or heirs ~~and representatives,~~ without the prior written consent of ~~such~~ the affected ~~D&O~~ Indemnified ~~Party or other person~~Person.

Appears in 3 contracts

Samples: Merger Agreement (Halozyme Therapeutics, Inc.), Merger Agreement (Antares Pharma, Inc.), Merger Agreement (Antares Pharma, Inc.)

Indemnification of Officers and Directors. (a) ~~From~~ All rights to indemnification, advancement of expenses, and exculpation by WWE existing (the ~~Effective Time through the sixth~~ “D&O Indemnification Obligations”) in favor of those Persons who are current or former directors, officers, members, managers, employees or agents of WWE or any WWE Subsidiary (~~6th) anniversary of the date on which the Effective Time occurs, each of Parent~~ and ~~the Surviving Corporation, jointly and severally, shall indemnify and hold harmless each~~ any person who ~~is now~~becomes a director, officer, member or ~~has been at~~ manager of WWE or any ~~time~~ WWE Subsidiary prior to the ~~date hereof~~Effective Time) (collectively, together with such Person’s heirs, executors and administrators, the “D&O Indemnified Persons”) for any act, omission or ~~who becomes~~ other matter occurring prior to the Effective Time, as provided in the organizational documents of WWE and the WWE Subsidiaries (as in effect as of the date of this Agreement) or in any indemnification agreements between WWE or any WWE Subsidiary set forth on Section 6.4(a) of the WWE Disclosure Letter and said D&O Indemnified Persons (in effect as of the date of this Agreement) shall survive the Merger and shall continue in full force and effect and shall not be amended, repealed, or otherwise modified in any manner that would adversely affect the rights thereunder of any D&O Indemnified Person, and shall be observed by the Surviving Entity and its Subsidiaries to the fullest extent available under Delaware Law or other applicable Law for a ~~director~~period of six (6) years from the Effective Time, ~~officer~~and any claim made pursuant to such rights within such six (6)-year period shall continue to be subject to this Section 6.4(a) and the rights provided under this Section 6.4(a) until disposition of such claim. (b) From the Effective Time until the six (6)-year anniversary of the Closing Date, ~~fiduciary or agent of Parent or the Company~~ New PubCo and HoldCo (together with their ~~respective Subsidiaries~~successors and assigns, ~~respectively (~~the “D&O ~~Indemnified~~ Indemnifying Parties”)) shall, to the fullest extent permitted under Delaware Law or other applicable Law, indemnify and hold harmless each D&O Indemnified Person against all losses, claims, ~~losses~~damages, liabilities, ~~damages~~fees, expenses, judgments, or fines (including reasonable and ~~reasonable fees, costs and expenses, including~~ documented attorneys’ fees and ~~disbursements~~investigation expenses) incurred by such D&O Indemnified Person due to such D&O Indemnified Person’s capacity as an officer, ~~incurred~~ director, member, manager, employee or agent of WWE or any WWE Subsidiary in connection with any ~~claim, action, suit, proceeding~~ pending or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the Companythreatened Legal Proceeding, whether asserted or claimed prior to, at or after the Effective Time, based on, arising out of, or relating to, in ~~each case~~whole or in part, (i) the fact that such D&O Indemnified Person is or was a director, officer, member, manager, employee or agent of WWE or any WWE Subsidiary, (ii) any action or omission, or alleged action or omission, in such D&O Indemnified Person’s capacity as an officer, director, member, manager, employee or agent of WWE or any WWE Subsidiary, or taken at the request of WWE or such WWE Subsidiary (including in connection with serving at the request of WWE or such WWE Subsidiary as an officer, director, member, manager, agent, trustee or fiduciary of another Person (including any employee benefit plan), regardless of whether such action or omission, or alleged action or omission, occurred prior to, at or after the Effective Time), and (iii) with respect to the Transactions, as well as any actions taken by WWE, New PubCo or Merger Sub with respect thereto (including any disposition of assets of the Surviving Entity or any of its Subsidiaries that is alleged to have rendered the Surviving Entity or any of its Subsidiaries insolvent). Without limiting the foregoing, from the Effective Time until the six (6)-year anniversary of Closing Date, the D&O Indemnifying Parties shall also, to the fullest extent permitted under applicable Law~~. Each D&O Indemnified Party will be entitled to advancement of~~ , advance reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees and investigation expenses) incurred ~~in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt~~ by ~~Parent or the Surviving Corporation from~~ the D&O Indemnified ~~Party~~ Persons in connection with matters for which such D&O Indemnified Persons are eligible to be indemnified pursuant to this Section 6.4(b) reasonably promptly after receipt by New PubCo of a written request ~~therefor; provided that any~~ for such ~~person to whom expenses are advanced provides an undertaking to Parent~~advance, subject to the ~~extent then required~~ execution by such D&O Indemnified Persons of appropriate undertakings in favor of the ~~DGCL,~~ D&O Indemnifying Parties to repay such ~~advances~~ advanced costs and expenses if it is ultimately determined in a final and nonappealable judgment of a court of competent jurisdiction that such ~~person~~ D&O Indemnified Person is not entitled to ~~indemnification~~be indemnified under this Section 6.4(b); provided, that if any D&O Indemnified Person delivers to New PubCo a written notice asserting a claim for indemnification pursuant to this Section 6.4(b), then the claim asserted in such notice will survive the sixth (6th) anniversary of the Effective Time until such claim is fully and finally resolved. Notwithstanding anything to the contrary in this Agreement, none of New PubCo, the Surviving Entity nor any of their respective Affiliates shall settle or otherwise compromise or consent to the entry of any judgment with respect to, or otherwise seek the termination of, any Legal Proceeding for which indemnification may be sought by an D&O Indemnified Person pursuant to this Agreement unless such settlement, compromise, consent or termination includes an unconditional release of such D&O Indemnified Person from all liability arising out of such Legal Proceeding. Any determination required to be made with respect to whether the conduct of any D&O Indemnified Person complies or complied with any applicable standard will be made by independent legal counsel selected by the Surviving Entity (which counsel will be reasonably acceptable to such D&O Indemnified Person), the fees and expenses of which shall be paid by the Surviving Entity. (bc) ~~The provisions~~ From the Effective Time until the sixth (6th)-anniversary of the ~~Organizational Documents of Parent with respect to indemnification~~Closing Date, ~~advancement of expenses~~ the Surviving Entity shall, and ~~exculpation of present~~ New PubCo and ~~former directors~~ EDR shall cause the Surviving Entity to, maintain, in effect, the existing directors’ and ~~officers of Parent that are set forth in the Organizational Documents of Parent~~ officers’ and fiduciary liability insurance policies maintained by WWE as of the date of this Agreement ~~shall not be amended~~for the benefit of WWE, ~~modified~~ WWE Subsidiaries and D&O Indemnified Persons who are currently covered by such existing policies with respect to their acts and omissions occurring at or ~~repealed for a period of six (6) years from~~ prior to the Effective Time in ~~a manner that would adversely affect~~ their capacities as directors and officers of WWE (as applicable), on terms with respect to coverage, deductibles and amounts no less favorable than the ~~rights thereunder of individuals who~~existing policy and from an insurance carrier with the same or better credit rating as WWE’s current directors’ and officers’ liability insurance; provided that, at or prior to the Effective Time, ~~were officers or directors~~ WWE may (and at the request of ~~Parent. The Organizational Documents of~~ EDR shall) purchase a six (6)-year “tail” policy for the ~~Surviving Corporation shall contain,~~ existing directors’ and ~~Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses~~ officers’ and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties fiduciary liability policies effective as of immediately prior to the ~~Closing~~ Effective Time and if an applicable “tail policy” has been obtained, it shall be deemed to satisfy all obligations to obtain and/or maintain insurance pursuant to this Section 6.4(c) in respect of the applicable policy; provided that in no event shall the Surviving Entity be required to expend in any ~~indemnification provisions under~~ one (1) year an amount in excess of 300% of the ~~Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties,~~ annual premiums currently payable by WWE with respect to ~~claims arising out of matters occurring at~~ such current polices, it being understood that if the annual premiums payable for such insurance coverage exceed such amount, New PubCo and EDR shall be obligated to cause the Surviving Entity to obtain policies with the greatest coverage available for a cost equal to such amount. If EDR or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, WWE purchases a “tail policy” prior to the Effective Time, ~~a six~~ the Surviving Entity shall (~~6)-year prepaid “~~and New PubCo shall cause the Surviving Entity to) maintain such tail ~~policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’~~ policy in full force and ~~officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies~~ effect for a ~~claims reporting or discovery~~ period of ~~at least~~ no less than six (6) years ~~from and~~ after the Effective Time ~~with respect~~ and continue to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directorshonor its obligations thereunder. (ed) ~~From and after the Effective Time~~If New PubCo, ~~Parent shall pay all expenses~~EDR, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) From and after the Effective Time, in the event Parent or the Surviving ~~Corporation~~ Entity, or any of their respective legal successors or permitted assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving ~~corporation or entity~~ Person of such consolidation or ~~merger,~~ merger or (ii) transfers all or substantially all of its properties and assets to any ~~Person~~Person or consummate any division transaction, then, and in each such case, proper ~~provision~~ provisions shall be made so that the legal successors and permitted assigns of ~~Parent~~ New PubCo, EDR, or the Surviving ~~Corporation, as the case may be,~~ Entity shall ~~succeed to~~ assume all of the obligations set forth in this Section ~~5.7. Parent~~ 6.4. (e) The provisions of this Section 6.4 shall ~~cause~~ survive the ~~Surviving Corporation to perform all~~ consummation of the ~~obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall~~ Transactions and may not be terminated, amended or otherwise modified in any manner that adversely affects any ~~D&O~~ Indemnified ~~Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives,~~ Person without the prior written consent of such ~~affected~~ Indemnified Person. Each D&O Indemnified ~~Party~~ Persons are, and are intended to be, third party beneficiaries of this Section 6.4, with full rights of enforcement as if a Party. The rights of D&O Indemnified Persons this Section 6.4 will be in addition to, and not in substitution for, any other rights that such Persons may have, including any rights pursuant to (i) the certificate of incorporation and bylaws of WWE; (ii) the organizational documents of the WWE Subsidiaries; (iii) any and all indemnification agreements entered into with WWE or any WWE Subsidiaries; or (iv) applicable Law (whether at Law or in equity). (f) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any right pursuant to any indemnification agreement or any directors’ and officers’, employment practices and fiduciary liability insurance claims under any policy that is or has been in existence with respect to WWE or any WWE Subsidiary for any of their respective directors, officers or other ~~person~~employees, it being understood and agreed that the indemnification provided for in this Section 6.4 is not prior to or in substitution for any such claim under such policies.

Appears in 3 contracts

Samples: Transaction Agreement (New Whale Inc.), Transaction Agreement (Endeavor Group Holdings, Inc.), Transaction Agreement (World Wrestling Entertainmentinc)

Indemnification of Officers and Directors. (a) From the ~~Effective Time~~ Closing Date through the ~~sixth (6th)~~ seventh anniversary of the date on which the ~~Effective Time~~ Closing Date occurs, ~~each of Parent and the Surviving Corporation, jointly and severally,~~ AMMA shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the ~~Effective Time~~Closing Date, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent or the Company and their respective Subsidiaries, respectively~~ AMMA (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent or of the Company~~AMMA, whether asserted or claimed prior to, at or after the ~~Effective Time, in each case~~Closing Date, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL~~, to repay such advances if it is ultimately determined that such person is not entitled to indemnification~~. (b) The ~~provisions~~ certificate of ~~the Organizational Documents~~ incorporation of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement AMMA shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers ~~as those~~ of each of AMMA than are presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent~~ incorporation of AMMA and the certificate of incorporation and bylaws of SCWorx, as applicable, which provisions shall not be amended, modified or repealed for a period of seven years’ time from the ~~date~~ Closing Date in a manner that would adversely affect the rights thereunder of ~~this Agreement~~individuals who, at or prior to the Closing Date, were officers or directors of AMMA. (c) ~~From~~ AMMA shall purchase a “tail” insurance policy for AMMA’s officers and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, directors with an effective date as of the Closing Date, ~~on commercially available~~ which shall remain effective for seven years following the Closing Date, with at least the same coverage and amounts and containing the same terms and conditions ~~and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior~~ that are not less favorable to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former AMMA officers and directors ~~of Parent and~~ than the ~~Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the~~ Existing AMMA D&O ~~Indemnified Parties, their heirs and their representatives~~Policies. (g) From and after the Effective Time, in the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person

Appears in 3 contracts

Samples: Share Exchange Agreement (Alliance MMA, Inc.), Share Exchange Agreement (Alliance MMA, Inc.), Share Exchange Agreement

Indemnification of Officers and Directors. (a) From the Merger Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Merger Effective Time occurs, each of Parent and the Surviving ~~Corporation~~Entity shall, jointly and severally, ~~shall~~ indemnify and hold ~~harmless~~ harmless, to the fullest extent not prohibited by applicable Legal Requirements, each ~~person~~ Covered Party who was, is or becomes, or is threatened to be made, a party to or witness or other participant in, or was or is or becomes obligated to furnish or furnishes documents in response to a subpoena or otherwise in connection with any threatened, pending or completed claim, action, suit, proceeding, arbitration or alternative dispute resolution mechanism, investigation, inquiry, administrative hearing, appeal or any other actual, threatened or completed proceeding, whether brought in the right of a Covered Party or otherwise and whether of a civil (including intentional or unintentional tort claims), criminal, administrative, arbitrative or investigative nature (each, an “Indemnification Event”) by reason of the fact that such Person is now, or has been at any time prior to the date ~~hereof,~~ hereof or who becomes prior to the Merger Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent or~~ any of the ~~Company and their respective Subsidiaries, respectively~~ Acquired Companies (the “~~D&O Indemnified~~ Covered Parties”), ~~against~~ from (i) any and all direct and indirect fees and costs, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating, printing and binding costs, telephone charges, postage and delivery service fees and all other disbursements or expenses of any type or nature whatsoever reasonably incurred by a Covered Party (including reasonable attorneys’ fees) and (ii) any and all losses, claims, ~~losses~~damages, liabilities, ~~damages,~~ judgments, ~~fines~~ fines, penalties, settlement payments, awards and ~~reasonable fees~~amounts of any type whatsoever incurred by such Covered Party in connection with or arising from any Indemnification Event (A) arising out of or, ~~costs and expenses, including attorneys’ fees and disbursements, incurred~~ relating to or in connection with any ~~claim, action, suit, proceeding~~ acts or ~~investigation, whether civil, criminal, administrative~~ omissions occurring or ~~investigative,~~ alleged to occur prior to or at the Merger Effective Time or (B) arising out of or pertaining to the fact that the ~~D&O Indemnified~~ Covered Party is or was ~~a director, officer, fiduciary~~ an officer or ~~agent~~ director of ~~Parent or~~ any of the ~~Company~~Acquired Companies (in each case, including the taking of any action or the failure to take any action as a director or officer of any Acquired Company in connection with the Merger Transactions), whether asserted or claimed prior to, at or after the Merger Effective Time~~, in each case, to the fullest extent permitted under applicable Law~~. Each ~~D&O Indemnified~~ Covered Party will be ~~entitled~~ entitled, subject to applicable Legal Requirements, to advancement of expenses incurred in the defense of or other participation in any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving ~~Corporation, jointly and severally, upon~~ Entity within ten (10) business days of receipt by Parent or the Surviving ~~Corporation~~ Entity from the ~~D&O Indemnified~~ Covered Party of a request therefor; ~~provided~~ provided, that any ~~such person~~ Person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, to the extent ~~then~~ required by ~~the DGCL~~applicable Legal Requirements, to repay such advances if it is ultimately determined that such ~~person~~ Person is not entitled to indemnification. (b) The ~~provisions of the~~ Organizational Documents of the Surviving Entity shall contain, and Parent shall cause the organizational documents of the Surviving Entity to so contain, provisions no less favorable to the Covered Parties with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent that~~ the Acquired Companies than are presently set forth in the Organizational Documents of ~~Parent as of~~ the ~~date of this Agreement~~ Acquired Companies. (c) At the Company’s election, in consultation with Parent, (i) the Company shall ~~not be amended~~purchase prior to the Closing, ~~modified~~ and the Surviving Entity shall maintain following the Closing, “tail” or ~~repealed for~~ “run-off” insurance policies with a claims period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable Closing Date with respect to ~~indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in~~ the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain current directors’ and officers’ liability insurance ~~policies, with an effective date as~~ of the ~~Closing Date~~Company with substantially the same coverage and in amount and scope no less favorable, ~~on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition~~in the aggregate, ~~Parent shall purchase, prior to~~ than the ~~Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the~~ existing directors’ and officers’ liability insurance policy of the Company (the “Current Policy”) for claims arising from facts or events that existed or occurred on or prior to the Closing Date or (ii) if the Company shall not have obtained such policies, Parent will provide, or cause the Company to provide, for a period of not less than six (6) years after the Closing Date, the Covered Parties who are insured under the Current Policy with an insurance and indemnification policy that provides coverage for events occurring at or prior to the Closing that is no less favorable, taken as a whole, than the Current Policy or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, however, that in no event shall the Surviving Entity be required to expend annually in excess of ~~Parent’s existing~~ two hundred and fifty percent (250%) of the annual premium currently paid by the Company under the Current Policy (the “Insurance Amount”); provided, further, however, that if the premium of such insurance coverage exceeds the Insurance Amount, the Company shall be obligated to obtain, and the Surviving Corporation shall be obligated to maintain, a policy with the greatest coverage available for a cost not exceeding the Insurance Amount. Parent shall pay or cause Company to pay for all premiums under the tail or run-off insurance policies and directors’ and officers’ insurance and indemnification policies ~~for a claims reporting or discovery period of at least six (6~~contemplated by this Section 7.5(c) ~~years from and after~~ not exceeding the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directorsInsurance Amount. (ed) ~~From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to~~ Notwithstanding anything contained in this ~~Section 5.7 in connection with their successful enforcement of~~ Agreement to the ~~rights provided to such persons in~~ contrary, this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement 7.5 shall survive the consummation of the Merger Transactions indefinitely, shall be binding, jointly and ~~shall continue in full force~~ severally, on all successors and ~~effect. The provisions~~ assigns of ~~this Section 5.7 are intended to be in addition to~~ Parent, the ~~rights otherwise available to the current~~ Surviving Entity and ~~former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of~~its Subsidiaries, and shall be enforceable ~~by, each of~~ by the ~~D&O Indemnified Parties, their heirs~~ Covered Parties and their ~~representatives. (g) From and after the Effective Time~~successors, in assigns, heirs or Representatives. In the event that Parent or the Surviving ~~Corporation~~ Entity or any of ~~their respective~~ its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or ~~merger,~~ merger or (ii) transfers or conveys all or substantially all of its stock, properties ~~and~~ or assets to any Person, then, ~~and~~ in each ~~such~~ case, proper provision shall be made so that the successors ~~and~~ or assigns of Parent or the Surviving ~~Corporation~~Entity, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~7.5. ~~Parent~~ The agreements and covenants contained herein shall ~~cause the Surviving Corporation~~ not be deemed to ~~perform all~~ be exclusive of any other rights to which any such present or former director or officer is entitled, whether pursuant to applicable Legal Requirements, Contract or otherwise. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to any of the ~~obligations of~~ Acquired Companies, including the ~~Surviving Corporation under this Section 5.7. The obligations set forth~~ Current Policy, or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section ~~5.7 shall~~ 7.5 is not ~~be terminated, amended~~ prior to or ~~otherwise modified~~ in substitution for any ~~manner that adversely affects~~ such claims under any ~~D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of~~ such ~~affected D&O Indemnified Party or other person~~policies.

Appears in 3 contracts

Samples: Merger Agreement (Inland American Real Estate Trust, Inc.), Merger Agreement (Winston Hotels Inc), Merger Agreement (Winston Hotels Inc)

Indemnification of Officers and Directors. (a) From the ~~Effective Time through~~ Closing Date until the sixth ~~(6th)~~ anniversary ~~of the date on which the Effective Time occurs~~thereof, each of Parent and the Surviving Corporation, jointly and severally, shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, fiduciary or agent of Parent or the Company and their respective Subsidiaries, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each caseCLNC shall, to the fullest extent permitted under applicable ~~Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in~~ requirements under the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions laws of the ~~Organizational Documents~~ State of ~~Parent with respect~~ Maryland in effect from time to time, and without requiring a preliminary determination of the ultimate entitlement to indemnification, ~~advancement of expenses~~ provide indemnification to each Indemnified Person to the same extent as and ~~exculpation of present~~ under the same conditions and ~~former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of~~ procedures to which such Indemnified Person is entitled on the date of this Agreement ~~shall not be amended~~under the Governing Instruments of CLNC and its subsidiaries and as provided in employment or indemnification agreements with such Indemnified Person as in effect on the date of this Agreement in connection with any pending or threatened Proceeding based on or arising out of, ~~modified~~ in whole or ~~repealed for~~ in part, the fact that such Indemnified Person is or was a ~~period~~ director or officer or person serving at the request of ~~six (6) years from~~ CLNC and its subsidiaries, or is or was serving at the ~~Effective Time in~~ request of CLNC as an officer or director of another corporation, joint venture or other enterprise or general partner of any partnership or a ~~manner that would adversely affect the rights thereunder~~ trustee of ~~individuals who~~any trust, at or prior to the ~~Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain,~~ Closing and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant pertaining to any ~~indemnification provisions under the Company’s Organizational Documents~~ and ~~pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties~~all matters pending, ~~with respect to claims arising out of matters~~ existing or occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective TimeClosing, whether asserted or claimed prior to, at or after the Closing, ~~now existing~~ including any such matter arising under any claim with respect to the transactions contemplated hereby. Without limiting the foregoing, from the Closing Date until the sixth anniversary thereof, CLNC shall also, to the fullest extent permitted under applicable requirements under Law, advance reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Indemnified Persons in connection with matters for which such Indemnified Persons are eligible to be indemnified pursuant to this Section 4.11(a) within fifteen (15) days after receipt by CLNC of a written request for such advance, subject to the execution by such Indemnified Persons of appropriate undertakings in favor of CLNC to repay such advanced costs and expenses if it is ultimately determined in a final and nonappealable judgment of a court of competent jurisdiction that such Indemnified Person is not entitled to be indemnified under this Section 4.11(a). (b) From the Closing Date until the sixth anniversary thereof, CLNC shall not amend, repeal or otherwise modify the exculpation, indemnification and advancement of expenses provisions of the Governing Instruments of CLNC and its subsidiaries as in effect immediately prior to the Closing or in any indemnification contracts of CLNC or its subsidiaries with any of their respective directors, officers or employees as in effect immediately prior to the Closing, in each case in any manner that would adversely affect the rights thereunder of any individuals who at the Closing were current or former directors, officers or ~~employees~~employees of CLNC or its subsidiaries. (c) From the Closing Date until the sixth anniversary thereof, as CLNC shall maintain in effect CLNC’s and its subsidiaries’ current directors’ and officers’ liability insurance policies covering acts or omissions occurring (or alleged to occur) at or prior to the ~~case~~ Closing with respect to Indemnified Persons (provided that CLNC may besubstitute therefor policies with reputable carriers of at least substantially similar coverage containing terms, conditions and exclusions that are not less favorable to the Indemnified Persons); provided, however, that in no event shall CLNC be required to expend pursuant to this Section 4.11(c) more than an amount per year equal to 250% of ~~Parent~~ current annual premiums paid by CLNC for such insurance. In the event that, but for the proviso to the immediately preceding sentence, CLNC would be required to expend more than 250% of the current annual premiums, CLNC shall obtain the maximum amount of such insurance obtainable by payment of annual premiums equal to 250% of current annual premiums. In lieu of the foregoing, CLNC may, at its election, purchase from a reputable carrier a six (6)-year prepaid “tail policy” of at least substantially similar coverage containing terms, conditions and exclusions that are not less favorable to the Indemnified Persons, acts or omissions occurring (or alleged to occur) at or prior to the ~~Company as provided in their respective Organizational Documents or in any agreement~~ Closing with respect to Indemnified Persons, at an aggregate cost not exceeding the aggregate maximum amount payable pursuant to the provisions above for such six (6)-year period; provided, that if the cost of such insurance coverage exceeds such maximum amount, CLNC shall ~~survive~~ obtain a policy with the ~~Merger and shall continue in full force and effect~~greatest coverage available for a cost not exceeding such maximum amount. The provisions of this Section ~~5.7~~ 4.11 shall survive the consummation of the Closing for a period of six (6) years and are expressly intended to ~~be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the~~ benefit ~~of, and shall be enforceable by,~~ each of the ~~D&O~~ Indemnified ~~Parties~~Persons; provided, ~~their~~ however, that in the event that any claim or claims for indemnification that exist prior to the Closing or are asserted or made within such six (6)-year period, all rights to indemnification in respect of any such claim or claims shall continue until disposition of any and all such claims. The provisions of this Section 4.11 are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. Unless required by applicable Law, this Section 4.11 may not be amended, altered or repealed after the Closing in such a manner as to adversely affect the rights of any Indemnified Person or any of his or her heirs ~~and their representatives~~without the prior written consent of the affected Indemnified Person. (gd) ~~From and after the Effective Time, in~~ In the event ~~Parent or the Surviving Corporation~~ CLNC or any of ~~their respective~~ its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or ~~merger,~~ merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, CLNC shall ensure that proper provision ~~shall be~~ is made so that the successors and assigns of ~~Parent or the Surviving Corporation, as the case may be, shall succeed to~~ CLNC assume the obligations set forth in this Section ~~5.7~~4.11. ~~Parent shall cause~~ For the ~~Surviving Corporation to perform all~~ avoidance of ~~the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth~~ doubt, nothing in this Section ~~5.7~~ 4.11 shall ~~not~~ be ~~terminated~~deemed to provide Colony OP, ~~amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party,~~ CCIA or any ~~person who is~~ of their respective Affiliates a ~~beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written~~ consent of right over such ~~affected D&O Indemnified Party~~ merger or other ~~person~~transaction.

Appears in 3 contracts

Samples: Termination Agreement (Colony Capital, Inc.), Termination Agreement (Colony Capital, Inc.), Termination Agreement (Colony Credit Real Estate, Inc.)

Indemnification of Officers and Directors. (a) From the First Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the First Effective Time occurs, each of Parent and the Surviving ~~Corporation, jointly and severally,~~ Entity shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the First Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of Parent or the Company ~~and~~ or any of their respective Subsidiaries, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of Parent or of the Company, ~~whether~~ or any Subsidiary thereof, asserted or claimed prior ~~to, at or after~~ to the First Effective Time, in each case, to the fullest extent permitted under applicable Law. ~~Each~~ Except in the case of fraud, each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving ~~Corporation~~Entity, jointly and severally, upon receipt by Parent or the Surviving ~~Corporation~~ Entity from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the ~~DGCL~~DGCL or DLLCA, as applicable, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the ~~Organizational Documents~~ certificate of incorporation and bylaws of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are presently set forth in the ~~Organizational Documents~~ certificate of incorporation and bylaws of Parent ~~as of the date of this Agreement~~ shall not be amended, modified or repealed for a period of six ~~(6)~~ years from the First Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the First Effective Time, were officers or directors of Parent, unless such modification is required by applicable Law. The ~~Organizational Documents~~ certificate of formation and limited liability company agreement of the Surviving ~~Corporation~~ Entity shall contain, and Parent shall cause the ~~Organizational Documents~~ certificate of formation and limited liability company agreement of the Surviving ~~Corporation~~ Entity to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~Parent. (c) From and after the First Effective Time, (i) the Surviving ~~Corporation~~ Entity shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the First Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the First Effective Time. (d) From and after the First Effective Time, Parent shall continue to maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the First Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section ~~5.7~~ 4.5 in connection with their successful enforcement of the rights provided to such persons in this Section ~~5.7~~4.5. (fe) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 4.5 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (gf) ~~From and after the Effective Time, in~~ In the event Parent or the Surviving ~~Corporation~~ Entity or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving ~~Corporation~~Entity, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~4.5. Parent shall cause the Surviving ~~Corporation~~ Entity to perform all of the obligations of the Surviving ~~Corporation~~ Entity under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person4.5.

Appears in 3 contracts

Samples: Merger Agreement (Spyre Therapeutics, Inc.), Merger Agreement (Aeglea BioTherapeutics, Inc.), Merger Agreement (Aeglea BioTherapeutics, Inc.)

Indemnification of Officers and Directors. (a) All rights to indemnification, advancement of expenses and exculpation by the Company existing as of the Agreement Date in favor of those Persons who are directors and officers of the Company as of the Agreement Date or have been directors and officers of the Company in the past (the “Indemnified Persons”) for their acts and omissions occurring prior to the Effective Time, as provided in the certificate of incorporation and bylaws of the Company (as in effect as of the Agreement Date) and as provided in the indemnification agreements between the Company and said Indemnified Persons disclosed in the Company Disclosure Letter and made available by the Company to Parent or Parent’s Representatives prior to the Agreement Date, shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of such Indemnified Persons, and shall be observed by Parent, the Surviving Corporation and their successors and assigns to the fullest extent available under Delaware Law for a period of six (6) years from the Effective Time, and any claim made pursuant to such rights within such six (6)-year period shall continue to be subject to this Section 7.4(a) and the rights provided under this Section 7.4(a) until disposition of such claim. (b) From and after the Effective Time ~~through~~ until the sixth (6th) anniversary of the date on which the Effective Time occurs, ~~each of~~ Parent and the Surviving ~~Corporation~~Corporation (together with their successors and assigns, jointly and severally, shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, fiduciary or agent of Parent or the Company and their respective Subsidiaries, respectively (the “~~D&O Indemnified~~ Indemnifying Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case) shall, to the fullest extent permitted under applicable ~~Law. Each D&O~~ Laws, indemnify and hold harmless each Indemnified ~~Party will be entitled to advancement of expenses incurred~~ Person in ~~the defense of any such claim, action, suit, proceeding~~ his or ~~investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent~~ her capacity as an officer or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations director of the Company ~~to its D&O~~ against all losses, claims, damages, liabilities, fees, expenses, judgments or fines incurred by such Indemnified ~~Parties~~ Person as an officer or director of ~~immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between~~ the Company ~~and such D&O Indemnified Parties,~~ in connection with ~~respect to claims~~ any pending or threatened Legal Proceeding based on or arising out of, in whole or in part, the fact that such Indemnified Person is or was a director or officer of ~~matters occurring~~ the Company at or prior to the Effective Time and ~~(ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant~~ pertaining to any ~~indemnification provisions under Parent’s Organizational Documents~~ and ~~pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties~~all matters pending, ~~with respect to claims arising out of matters occurring at~~ existing or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the ~~Closing~~Effective Time, ~~now existing~~ including any such matter arising under any claim with respect to the Transactions. Without limiting the foregoing, from the Effective Time until the sixth (6th) anniversary of the date on which the Effective Time occurs, the Indemnifying Parties shall also, to the fullest extent permitted under applicable Laws, advance reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Indemnified Persons in connection with matters for which such Indemnified Persons are eligible to be indemnified pursuant to this Section 7.4(b), subject to the execution by such Indemnified Persons of appropriate undertakings in favor of the ~~current~~ Indemnifying Parties to repay such advanced costs and expenses if it is ultimately determined in a final and non-appealable judgment of a court of competent jurisdiction that such Indemnified Person is not entitled to be indemnified under this Section 7.4(b). (c) From the Effective Time until the sixth (6th) anniversary of the Effective Time, the Surviving Corporation shall maintain, and Parent shall cause the Surviving Corporation to maintain, in effect, a directors’ and officers’ liability insurance, providing coverage no less favorable to the insureds than the policy maintained by the Company as of the Agreement Date, for the benefit of the Indemnified Persons who are currently covered by such existing policy with respect to their acts and omissions occurring prior to the Effective Time in their capacities as directors and officers of the Company (as applicable), including terms with respect to coverage, deductibles and amounts no less favorable than the currently existing policy, or, at or ~~former directors~~prior to the Effective Time, ~~officers or employees, as the case may be, of~~ Parent or the Company may (through a nationally recognized insurance broker approved by Parent (such approval not to be unreasonably withheld, conditioned or delayed)) purchase a six (6)-year “tail” policy for the existing policy effective as ~~provided in their respective Organizational Documents~~ of the Effective Time and if such “tail policy” has been obtained, it shall be deemed to satisfy all obligations to obtain or ~~in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of~~ maintain insurance pursuant to this Section ~~5.7 are intended~~ 7.4(c); provided, however, that in no event shall the Surviving Corporation be required to be expend in ~~addition to~~ or for any one (1) policy year an amount in excess of 300% of the ~~rights otherwise available to the current and former officers and directors of Parent and~~ annual premium currently payable by the Company ~~by Law~~with respect to such currently existing policy, ~~charter~~it being understood that if the annual premiums payable for such insurance coverage exceeds such amount, ~~statute, bylaw or agreement, and shall operate for the benefit of, and~~ Parent shall be ~~enforceable by, each of~~ obligated to cause the ~~D&O Indemnified Parties, their heirs and their representatives~~Surviving Corporation to obtain a policy with the greatest coverage available for a cost equal to such amount. (gd) ~~From and after the Effective Time, in~~ In the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving ~~corporation or entity~~ Entity of such consolidation or ~~merger,~~ merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, ~~proper provision~~ Parent shall ~~be made so~~ ensure that the successors and assigns of Parent or the Surviving Corporation, as the case may be, or at Parent’s option, Parent, shall ~~succeed to~~ assume the obligations set forth in this Section ~~5.7. Parent~~ 7.4. (e) The provisions of this Section 7.4 shall ~~cause~~ survive the ~~Surviving Corporation~~ acceptance of Shares for payment pursuant to ~~perform all~~ the Offer and the consummation of the ~~obligations~~ Merger and are (i) intended to be for the benefit of, and shall be enforceable by, each of the ~~Surviving Corporation under this~~ Indemnified Persons and their successors, assigns and heirs and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. This Section ~~5.7. The obligations set forth in this Section 5.7 shall~~ 7.4 may not be ~~terminated~~amended, ~~amended~~ altered or ~~otherwise modified~~ repealed after the Offer Acceptance Time in such a manner as to adversely affect the rights of any ~~manner that adversely affects any D&O~~ Indemnified ~~Party,~~ Person or any ~~person who is a beneficiary under the policies referred to in this Section 5.7 and~~ of their successors, assigns or heirs ~~and representatives,~~ without the prior written consent of ~~such~~ the affected ~~D&O~~ Indemnified ~~Party or other person~~Person.

Appears in 2 contracts

Samples: Merger Agreement (Pacira BioSciences, Inc.), Merger Agreement (Flexion Therapeutics Inc)

Indemnification of Officers and Directors. (a) ~~From~~ For a period of six years from the Effective Time, Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time ~~through~~ (whether asserted or claimed prior to, at or after the Effective Time) now existing in favor of the current or former directors or officers of the Company under the certificate of incorporation and bylaws of the Company and any indemnification or other similar agreements of the Company set forth on Section 6.5(a) of the Company Disclosure Schedule, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms and shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any Indemnified Person (as defined below), and Parent shall cause the Company to perform its obligations thereunder. Without limiting the foregoing, during the period commencing at the Effective Time and ending on the sixth ~~(6th)~~ anniversary of the ~~date on which~~ Effective Time, Parent shall cause the ~~Effective Time occurs~~Surviving Corporation and its Subsidiaries to, ~~each of Parent~~ and the Surviving ~~Corporation~~Corporation agrees that it will, ~~jointly and severally, shall~~ indemnify and hold harmless each ~~person~~ individual who is ~~now, or has been at any time prior to~~ as of the date ~~hereof~~of this Agreement, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent or~~ the Company ~~and their respective Subsidiaries~~or who is as of the date of this Agreement, ~~respectively~~ or who thereafter commences prior to the Effective Time, serving at the request of the Company as a director or officer of another Person (the “~~D&O~~ Indemnified ~~Parties~~Persons”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, ~~suit, proceeding~~ suit or ~~investigation~~proceeding, whether civil, criminal, administrative or ~~investigative~~investigative (including with respect to matters existing or occurring at or prior to the Effective Time, including this Agreement and the transactions and actions contemplated hereby), arising out of or pertaining to the fact that the ~~D&O~~ Indemnified ~~Party~~ Person is or was a ~~director, officer, fiduciary~~ director or ~~agent of Parent or~~ officer of the ~~Company~~Company or is or was serving at the request of the Company as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under applicable ~~Law~~Legal Requirements. ~~Each D&O~~ In the event of any such claim, action, suit or proceeding, (x) each Indemnified ~~Party~~ Person will be entitled to advancement of expenses incurred in the defense of any such claim, action, ~~suit~~suit or proceeding from Parent, ~~proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or~~ the Surviving Corporation ~~from~~ or its Subsidiaries, as applicable, in accordance with the ~~D&O Indemnified Party~~ organizational documents and any indemnification or other similar agreements of ~~a request therefor~~the Surviving Corporation or its Subsidiaries, as applicable, as in effect on the date of this Agreement; provided that any ~~such person~~ Indemnified Person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, if and only to the extent ~~then~~ required by the ~~DGCL~~DGCL or the Surviving Corporation’s or any of its Subsidiaries’ certificate of incorporation or bylaws (or comparable organizational documents) or any such indemnification or other similar agreements, as applicable; to repay such advances if it is ultimately determined by final adjudication that such ~~person~~ Indemnified Person is not entitled to ~~indemnification~~indemnification and (y) Parent, the Surviving Corporation and its Subsidiaries, as applicable, shall reasonably cooperate in the defense of any such matter. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for For a period of six ~~(6)~~ years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent and the Surviving Corporation shall ~~maintain~~ either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance ~~policies~~maintained by the Company or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ insurance coverage currently maintained by the Company, ~~with an effective date as~~ in either case, of not less than the ~~Closing Date, on commercially available~~ existing coverage and having other terms ~~and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior~~ not less favorable to the ~~Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of~~ insured persons than the directors’ and officers’ liability insurance coverage ~~of Parent’s existing~~ currently maintained by the Company with respect to claims arising from facts or events that occurred at or before the Effective Time (with insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ ~~insurance policies for a claims reporting~~ liability insurance), except that in no event shall Parent or ~~discovery period of at least six (6) years from and after~~ the ~~Effective Time~~ Surviving Corporation be required to pay with respect to ~~any claim related to any period~~ such insurance policies an annual premium greater than 300% of ~~time at or~~ the aggregate annual premium most recently paid by the Company prior to the ~~Effective Time~~date of this Agreement (the “Maximum Amount”), and if the Surviving Corporation is unable to obtain the insurance required by this Section 6.5(b) it shall obtain as much comparable insurance as possible for the years within such six year period for a premium equal to the Maximum Amount. ~~During~~ In lieu of such insurance, prior to the ~~term of~~ Closing Date the ~~D&O Tail Policy~~Company may purchase a “tail” directors’ and officers’ liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ liability insurance coverage currently maintained by the Company, ~~Parent shall~~ such tail to provide coverage in an amount not ~~take any action following~~ less than the ~~Effective Time~~ existing coverage and to ~~cause~~ have other terms not less favorable to the ~~D&O Tail Policy~~ insured persons than the directors’ and officers’ liability insurance coverage currently maintained by the Company with respect to ~~be cancelled~~ claims arising from facts or ~~any provision therein to be amended~~ events that occurred at or ~~waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after~~ before the Effective Time, ; provided that in no event shall the cost of any such tail policy exceed the Maximum Amount. Parent and the Surviving Corporation shall ~~pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to~~ maintain such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue policies in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and ~~shall operate for~~ continue to honor the ~~benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives~~obligations thereunder. (gc) ~~From and after the Effective Time, in~~ In the event ~~Parent or~~ that the ~~Surviving Corporation~~ Company or any of ~~their respective~~ its successors or assigns (i) consolidates with or merges into any other Person and ~~shall~~ is not be the continuing or surviving corporation or ~~entity~~ Entity of such consolidation or ~~merger,~~ merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, the Company, as applicable, shall cause proper provision ~~shall~~ to be made so that the successors and assigns of ~~Parent or~~ the ~~Surviving Corporation, as the case may be, shall succeed to~~ Company assume the obligations set forth in this Section ~~5.7. Parent~~ 6.5. (d) The provisions of this Section 6.5 (i) shall ~~cause~~ survive the ~~Surviving Corporation~~ acceptance of Shares for payment pursuant to ~~perform all~~ the Offer and the consummation of the ~~obligations of~~ Merger and (ii) are intended to be for the ~~Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not~~ benefit of, and will be ~~terminated~~enforceable by, ~~amended~~ each indemnified or ~~otherwise modified in any manner that adversely affects any D&O~~ insured party (including the Indemnified ~~Party~~Persons), his or ~~any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs~~ her heirs, successors, assigns and representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification, advancement of expenses, exculpation or contribution that any such Person may have by contract or otherwise. Unless required by applicable Legal Requirement, this Section 6.5 may not be amended, altered or repealed after the Offer Acceptance Time in such a manner as to adversely affect the rights of any Indemnified Person or any of their successors, assigns or heirs without the prior written consent of ~~such~~ the affected ~~D&O~~ Indemnified ~~Party or other person~~Person.

Appears in 2 contracts

Samples: Merger Agreement (Forty Seven, Inc.), Merger Agreement (Gilead Sciences Inc)

Indemnification of Officers and Directors. (a) From and after the Initial Merger Effective ~~Time through~~ Time, to the ~~sixth (6th) anniversary~~ fullest extent permitted under the applicable organizational documents of the ~~date on which~~ Company and the ~~Effective Time occurs~~Company Subsidiaries and applicable Law, each of Parent and the Subsequent Surviving ~~Corporation~~Company agrees that it shall, jointly and severally, ~~shall indemnify~~ indemnify, defend and hold harmless (and advance expenses in connection therewith) each ~~person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, fiduciary or agent~~ present and former director and officer of ~~Parent or~~ the Company ~~and their respective Subsidiaries~~or any of the Company Subsidiaries (in each case, ~~respectively (the~~ when acting in such capacity)(the “~~D&O~~ Indemnified Parties”), against ~~all claims, losses, liabilities, damages, judgments, fines and~~ any costs or expenses (including reasonable ~~fees, costs and expenses, including~~ attorneys’ fees and disbursements), judgments, fines, penalties, losses, claims, damages or liabilities or amounts that are paid in settlement of or incurred in connection with any ~~claim~~actual or threatened Legal Proceeding to which such Indemnified Party is a party or is otherwise involved (including as a witness), ~~action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising~~ and arises out of or ~~pertaining~~ pertains to the fact that the ~~D&O~~ Indemnified Party is or was ~~a director, officer, fiduciary~~ an officer or ~~agent of Parent or~~ director of the ~~Company~~Company or any of the Company Subsidiaries, with respect to matters existing or occurring at or prior to the Initial Merger Effective Time (including this Agreement, the Mergers and the other transactions contemplated hereby), whether asserted or claimed prior to, at or after the Initial Merger Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for For a period of six (6) years from the ~~Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the~~ Initial Merger Effective Time, ~~were officers~~ the certificate of incorporation, bylaws or ~~directors of Parent. The Organizational Documents~~ other applicable governing document of the Subsequent Surviving ~~Corporation~~ Company shall ~~contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain,~~ contain provisions no less favorable with respect to ~~indemnification~~exculpation, indemnification and advancement of expenses ~~and exculpation~~ of ~~present and former~~ individuals who were directors and officers ~~as those~~ prior to the Initial Merger Effective Time than are set ~~forth in the Organizational Documents of Parent~~ forth, as of the date of this Agreement, in the Company’s certificate of incorporation and bylaws. (c) ~~From and after~~ The Subsequent Surviving Company (or Parent on the ~~Effective Time~~Subsequent Surviving Company’s behalf) shall, in its sole discretion, either (i) ~~the Surviving Corporation shall fulfill and honor~~ continue to maintain in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies effect for a ~~claims reporting or discovery~~ period of at least six (6) years from and after the Initial Merger Effective Time the Company’s existing directors’ and officers’ liability insurance (“D&O Insurance”) for the Persons who, as of the date of this Agreement, are covered by the Company’s existing D&O Insurance, with the Company’s current insurance company or with other recognized insurance companies and with terms, conditions, retentions and levels of coverage at least as favorable as provided in the Company’s existing policies as of the date of this Agreement, or, if such insurance is unavailable, the Subsequent Surviving Company (or Parent on the Subsequent Surviving Company’s behalf) shall purchase the best available D&O Insurance from a recognized insurance company for such six-year period with terms, conditions, retentions and with levels of coverage at least as favorable as provided in the Company’s existing policies as of the date of this Agreement, or (ii) obtain and fully pay for “tail” insurance policies in respect of D&O Insurance with a claims period of at least six (6) years from and after the Initial Merger Effective Time with recognized insurance companies with the same or better credit ratings as the Company’s current insurance carriers, for the Persons who, as of the date of this Agreement, are covered by the Company’s existing D&O Insurance, with terms, conditions, retentions and levels of coverage at least as favorable as the Company’s existing D&O Insurance with respect to ~~any claim related to any period of time at~~ matters existing or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Initial Merger Effective Time (including in connection with this Agreement or the transactions contemplated hereby). The Company shall cooperate with Parent and use commercially reasonable efforts to cause the Subsequent Surviving Company to be named as the successor-in-interest to the Company’s rights under the “tail” policies in respect of the D&O Insurance. Notwithstanding anything to the contrary in the foregoing, in no event shall Parent or the Subsequent Surviving Company be required to expend an annual premium amount in excess of 300% of the annual premiums currently paid by the Company or any of its Affiliates for such insurance; provided, that if the annual premiums of such insurance coverage exceed such amount, the Subsequent Surviving Company (or Parent on the Subsequent Surviving Company’s behalf) shall obtain a policy with the greatest coverage available for a cost not exceeding such amount. Section 5.8 of the Company Disclosure Letter sets forth such annual premiums currently paid by the Company. Parent shall provide a reasonable opportunity to the Company to comment on the terms of any endorsements or policies in connection with such “tail” policy. (d) In the event of any Legal Proceeding in which any claims are made in respect of which such Indemnified Party would be entitled to indemnification pursuant to this Section 5.8, any Indemnified Party wishing to claim such indemnification shall promptly notify the Subsequent Surviving Company thereof in writing, but the failure to so notify shall not relieve the Subsequent Surviving Company of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the Subsequent Surviving Company. In the event of any such Legal Proceeding: (i) the Subsequent Surviving Company shall have the right to assume the defense thereof (it being understood that by electing to assume the defense thereof, the Subsequent Surviving Company will not be deemed to have waived any right to object to the Indemnified Party’s entitlement to indemnification hereunder with respect thereto or assumed any liability with respect thereto), except that if the Subsequent Surviving Company elects not to assume such defense or legal counsel for the Indemnified Party advises that there are issues which raise conflicts of interest between the Subsequent Surviving Company and the Indemnified Party, the Indemnified Party may retain legal counsel satisfactory to the Subsequent Surviving Company and to the provider of any insurance obtained in accordance with the foregoing Section 5.8(c), and (ii) the Subsequent Surviving Company shall advance reasonable and documented fees, costs and expenses (including attorneys’ fees and disbursements) as incurred by such Indemnified Party in connection with and prior to the final disposition of such Legal Proceeding (in each case to the extent the Company or the applicable Company Subsidiary is required to do so and on the same terms as provided in the Company’s or such Company Subsidiary’s organizational documents in effect on the Initial Merger Effective Time); provided, ~~whether asserted~~ that (1) the Parent and Subsequent Surviving Company shall be obligated pursuant to this Section 5.8(d) to pay for only one firm of legal counsel for all Indemnified Parties in any jurisdiction unless the use of one legal counsel for such Indemnified Parties would present such legal counsel with a conflict of interest (in which case the fewest number of legal counsels necessary to avoid conflicts of interest shall be used) and (2) the Indemnified Party shall have made an undertaking to repay all such fees, costs or ~~claimed~~ expenses paid or advanced by Parent or the Subsequent Surviving Company if and to the extent that it is ultimately determined by a court of competent jurisdiction in a final judgment that the Indemnified Party is not entitled to be indemnified by Parent or the Subsequent Surviving Company; (iii) the Indemnified Parties shall cooperate in the defense of any such matter if Parent or the Subsequent Surviving Company elects to assume such defense; (iv) Parent or the Subsequent Surviving Company shall not be liable for any settlement effected without their prior ~~to, at or after~~ written consent and the ~~Closing, now existing in favor~~ prior written consent of the ~~current~~ provider of any insurance obtained in accordance with the foregoing Section 5.8(c), in each case if Parent or ~~former directors~~the Subsequent Surviving Company elects not to assume such defense; and (v) Parent and the Subsequent Surviving Company shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, ~~officers~~ and such determination shall have become final, that the indemnified action of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law. Notwithstanding anything herein to the contrary, neither Parent nor the Subsequent Surviving Company shall settle, compromise or ~~employees~~consent to the entry of any judgment in any Legal Proceeding (and in which indemnification could be sought by Indemnified Parties hereunder), as unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Legal Proceeding or such Indemnified Party otherwise consents in writing. (e) If Parent or the ~~case may be~~Subsequent Surviving Company or any of their respective successors or assigns (i) shall consolidate with or merge into any other corporation or Entity and shall not be the continuing or Subsequent Surviving Company or Entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other Entity, then, and in each such case, proper provisions shall be made (whether by operation of law or otherwise) so that the successors and assigns of Parent or the Subsequent Surviving Company shall assume all of the obligations of Parent or the Subsequent Surviving Company (as ~~provided~~ applicable) set forth in ~~their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect.~~ this Section 5.8. (f) The provisions of this Section ~~5.7~~ 5.8 are intended to be ~~in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate~~ for the benefit of, and shall be enforceable by, each of the ~~D&O~~ Indemnified ~~Parties~~Parties and their respective successors, ~~their~~ heirs and legal representatives, shall be binding on all successors and assigns of Parent and the Subsequent Surviving Company and shall not be amended in any manner that is adverse to the Indemnified Parties (including their successors, heirs and legal representatives) without the written consent of the Indemnified Party (including the successors, heirs and legal representatives) affected thereby. (g) ~~From and after~~ The rights of the ~~Effective Time~~Indemnified Parties under this Section 5.8 shall be in addition to any rights such Indemnified Parties may have under the Company Organizational Documents or the organizational documents of any Company Subsidiary or under any applicable Contracts or Laws in effect on the date of this Agreement and, in the ~~event~~ case of such Contracts, made available to Parent or prior to the execution hereof, and Parent shall, and shall cause the Subsequent Surviving ~~Corporation~~ Company to, honor and perform under all indemnification agreements entered into by the Company or any of ~~their respective successors or assigns (i) consolidates with or merges into any other Person~~ the Company Subsidiaries in effect on the date of this Agreement and ~~shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets~~ made available to ~~any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of~~ Parent ~~or the Surviving Corporation, as the case may be, shall succeed~~ prior to the obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other personexecution hereof.

Appears in 2 contracts

Samples: Merger Agreement (Crescent Energy Co), Merger Agreement (Silverbow Resources, Inc.)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of Parent and the Surviving ~~Corporation~~Corporation shall, jointly and severally, ~~shall~~ indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, fiduciary or agent of Parent or the Company and their respective Subsidiaries, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements and investigation costs, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the ~~Company~~Company or their respective Subsidiaries, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of ~~the~~ Parent’s Organizational Documents ~~of Parent~~ with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are presently set forth in the ~~Organizational Documents~~ certificate of incorporation and bylaws of Parent ~~as of the date of this Agreement~~ shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation shall contain, and Parent shall cause the ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~Parent. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, ~~Parent shall purchase,~~ prior to the Effective Time, Parent shall purchase a six (6)-year prepaid “tail policy” ~~(the “D&O Tail Policy”)~~ through Parent’s recognized broker of record for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective ~~Time. During~~ Time (the ~~term of the~~ “D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors”). (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section ~~5.7~~ 5.5 in connection with their successful enforcement of the rights provided to such persons in this Section ~~5.7~~5.5. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 5.5 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their ~~representatives~~Representatives. The obligations set forth in this Section 5.5 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party (and their heirs and Representatives) without the prior written consent of such affected D&O Indemnified Party (or their heirs and Representatives). (g) ~~From and after the Effective Time, in~~ In the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~5.5. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person5.5.

Appears in 2 contracts

Samples: Merger Agreement (Rexahn Pharmaceuticals, Inc.), Merger Agreement (Rexahn Pharmaceuticals, Inc.)

Indemnification of Officers and Directors. (a) ~~From~~ For a period of six (6) years from the Effective Time, Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time ~~through~~ (whether asserted or claimed prior to, at or after the Effective Time) now existing in favor of the current or former directors or officers of the Company and any indemnification or other similar agreements of the Company filed as an exhibit to the Company SEC Documents at least two (2) business days prior to the date hereof or listed in Section 3.9 of the Company Disclosure Schedule, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms (it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and Parent shall cause the Company to perform its obligations thereunder. Without limiting the foregoing, during the period commencing at the Effective Time and ending on the sixth ~~(6th)~~ anniversary of the ~~date on which~~ Effective Time, Parent shall cause the ~~Effective Time occurs~~Surviving Corporation to, ~~each of Parent~~ and the Surviving ~~Corporation~~Corporation agrees that it will, ~~jointly and severally, shall~~ indemnify and hold harmless each ~~person~~ individual who is ~~now, or has been at any time prior to~~ as of the date ~~hereof~~of this Agreement, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent or~~ the Company ~~and their respective Subsidiaries~~or who is as of the date of this Agreement, ~~respectively~~ or who thereafter commences prior to the Effective Time, serving at the request of the Company as a director or officer of another Person (the “~~D&O~~ Indemnified ~~Parties~~Persons”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, ~~suit, proceeding~~ suit or ~~investigation~~proceeding, whether civil, criminal, administrative or ~~investigative~~investigative (including with respect to matters existing or occurring at or prior to the Effective Time, including this Agreement and the transactions and actions contemplated hereby), arising out of or pertaining to the fact that the ~~D&O~~ Indemnified ~~Party~~ Person is or was a ~~director, officer, fiduciary~~ director or ~~agent of Parent or~~ officer of the ~~Company~~Company or is or was serving at the request of the Company as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under applicable ~~Law~~Legal Requirements. ~~Each D&O~~ In the event of any such claim, action, suit or proceeding, (x) each Indemnified ~~Party~~ Person will be entitled to advancement of expenses incurred in the defense of any such claim, action, ~~suit,~~ suit or proceeding ~~or investigation~~ from ~~each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or~~ the Surviving Corporation ~~from~~ in accordance with the ~~D&O Indemnified Party~~ organizational documents and any indemnification or other similar agreements of ~~a request therefor~~the Surviving Corporation as in effect on the date of this Agreement; provided that any ~~such person~~ Indemnified Person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, if and only to the extent ~~then~~ required by the ~~DGCL~~DGCL or the Surviving Corporation’s certificate of incorporation or bylaws (or comparable organizational documents) or any such indemnification or other similar agreements, to repay such advances if it is ultimately determined by final adjudication that such ~~person~~ Indemnified Person is not entitled to ~~indemnification~~indemnification and (y) the Surviving Corporation shall reasonably cooperate in the defense of any such matter. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for For a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective ~~Time~~ Time, Parent and the Surviving Corporation shall either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company or provide substitute policies for the Company and their current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, in either case, of not less than the existing coverage and having other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to ~~any claim related to any period of time~~ claims arising from facts or events that occurred at or before the Effective Time (with insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance), except that in no event shall Parent or the Surviving Corporation be required to pay with respect to such insurance policies, in the aggregate for all six (6) years, more than 300% of the aggregate annual premium most recently paid by the Company prior to the ~~Effective Time. During~~ date of this Agreement (the ~~term~~ “Maximum Amount”, which Maximum Amount is set forth in Section 6.4(b) of the ~~D&O Tail Policy~~Company Disclosure Schedule), ~~Parent~~ and if the Surviving Corporation is unable to obtain the insurance required by this Section 6.4(b) it shall obtain as much comparable insurance as possible for the years within such six (6)-year period for a premium equal to the Maximum Amount. In lieu of such insurance, prior to the Closing Date the Company may, at its option, purchase a “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not ~~take any action following~~ less than the ~~Effective Time~~ existing coverage and to ~~cause~~ have other terms not less favorable to the ~~D&O Tail Policy~~ insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to ~~be cancelled~~ claims arising from facts or ~~any provision therein to be amended~~ events that occurred at or ~~waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after~~ before the Effective Time, ; provided that in no event shall the cost of any such tail policy exceed the Maximum Amount. Parent and the Surviving Corporation shall ~~pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to~~ maintain such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue policies in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and ~~shall operate for~~ continue to honor the ~~benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives~~obligations thereunder. (gc) ~~From and after the Effective Time, in~~ In the event ~~Parent or~~ that the Surviving Corporation or any of ~~their respective~~ its successors or assigns (i) consolidates with or merges into any other Person and ~~shall~~ is not be the continuing or surviving corporation or entity of such consolidation or ~~merger,~~ merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, the Surviving Corporation shall cause proper provision ~~shall~~ to be made so that the successors and assigns of ~~Parent or~~ the Surviving ~~Corporation, as the case may be, shall succeed to~~ Corporation assume the obligations set forth in this Section ~~5.7. Parent~~ 6.4. (d) The provisions of this Section 6.4 (i) shall ~~cause~~ survive the ~~Surviving Corporation~~ acceptance of Shares for payment pursuant to ~~perform all~~ the Offer and the consummation of the ~~obligations of~~ Merger and (ii) are intended to be for the ~~Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not~~ benefit of, and will be ~~terminated~~enforceable by, ~~amended~~ each indemnified or ~~otherwise modified in any manner that adversely affects any D&O~~ insured party (including the Indemnified ~~Party~~Persons), his or ~~any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs~~ her heirs, successors, assigns and representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification, advancement of expenses, exculpation or contribution that any such Person may have by contract or otherwise. Unless required by applicable Legal Requirement, this Section 6.4 may not be amended, altered or repealed after the Offer Acceptance Time in such a manner as to adversely affect the rights of any Indemnified Person or any of their successors, assigns or heirs without the prior written consent of ~~such~~ the affected ~~D&O~~ Indemnified ~~Party or other person~~Person.

Appears in 2 contracts

Samples: Merger Agreement (Allergan PLC), Agreement and Plan of Merger (Tobira Therapeutics, Inc.)

Appears in 2 contracts

Samples: Merger Agreement (Riscorp Inc), Merger Agreement (Riscorp Inc)

Indemnification of Officers and Directors. (a) From and after the Effective ~~Time through the sixth (6th) anniversary of the date on which the Effective Time occurs~~Time, ~~each of Parent and~~ the Surviving ~~Corporation~~Corporation shall, ~~jointly~~ and ~~severally~~Obalon shall cause the Surviving Corporation to, ~~shall indemnify~~ indemnify, defend and hold harmless each ~~person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a~~ present and former director, ~~officer~~officer and employee of ReShape and Obalon, ~~fiduciary or agent~~ each present and former director, member of ~~Parent or~~ the ~~Company~~ board of directors, officer and employee of any of their respective Subsidiaries, ~~respectively~~ and any fiduciary under any ReShape Plan or Obalon Plan (in each case, when acting in such capacity), determined as of the Effective Time (the “~~D&O~~ Indemnified Parties”), against ~~all claims, losses, liabilities, damages, judgments, fines and reasonable fees,~~ any costs ~~and expenses,~~ or expenses (including attorneys’ fees and disbursements), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the ~~D&O~~ Indemnified Party is or was a director, officer, employee or fiduciary of ReShape or ~~agent of Parent~~ Obalon or a member of the ~~Company~~board of directors, officer, employee or fiduciary of any of its respective Subsidiaries or a fiduciary under any ReShape Plan or Obalon Plan, whether asserted or claimed prior to, at or after the Effective ~~Time,~~ Time (including with respect to any acts or omissions in ~~each case~~connection with this Agreement and the transactions and actions contemplated by this Agreement), to the fullest extent that ReShape or Obalon, as applicable, would have been permitted under applicable ~~Law. Each D&O Indemnified Party will be entitled~~ Law and the applicable Organizational Documents (and, to ~~advancement~~ the extent not contrary to applicable Law or its Organizational Documents, any indemnification agreement) in effect on the date of this Agreement to indemnify such Person (and the Surviving Corporation shall also promptly advance expenses as incurred in ~~the defense~~ advance of any final disposition of any such claim, action, suit, proceeding or investigation ~~from each~~ to the fullest extent that ReShape, Obalon or its applicable Subsidiary would have been permitted under applicable Law or its Organizational Documents (and, to the extent not contrary to applicable Law or its Organizational Documents, any indemnification agreement) in effect on the date of ~~Parent and~~ this Agreement; provided, however, that the ~~Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person~~ Person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, if and only to the extent ~~then~~ required by applicable Law or the ~~DGCL~~applicable Organizational Documents (as in effect on the date hereof), to repay such advances if it is ultimately determined that such ~~person~~ Person is not entitled to indemnification. ); and provided, further, that any determination required to be made with respect to whether a director’s, officer’s, employee’s or fiduciary’s conduct complied with the standards set forth under applicable Law and the applicable Organizational Documents (~~b) The provisions of~~ or the applicable Organizational Documents of ~~Parent with respect~~ a Subsidiary or ReShape Plan or Obalon Plan) shall be made by independent counsel selected by the Indemnified Party. In the event of any claim, action, suit, proceeding or investigation, (i) neither Obalon nor the Surviving Corporation shall settle, compromise or consent to ~~indemnification~~the entry of any judgment in any claim, ~~advancement~~ action, suit, proceeding or investigation (and in which indemnification could be sought by Indemnified Parties hereunder), unless such settlement, compromise or consent includes an unconditional release of ~~expenses~~ such Indemnified Party from all liability arising out of such claim, action, suit, proceeding or investigation or such Indemnified Party otherwise consents in writing, and ~~exculpation of present and former directors and officers of Parent that are set forth~~ (ii) the Surviving Corporation shall cooperate in the ~~Organizational Documents~~ defense of ~~Parent as of~~ such matter. The parties agree that this Section 6.07(a) does not purport to limit any rights that any Indemnified Party may have under any employment agreement, indemnification agreement, ReShape Plan or Obalon Plan in effect on the date of this Agreement and disclosed to ReShape or Obalon prior to the execution hereof, which provisions shall not be amended, ~~modified~~ repealed or ~~repealed for a period of six (6) years from the Effective Time~~ otherwise in a any manner that would materially adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreementany such individual. (cb) From and after the Effective Time, ~~(i)~~ the Surviving Corporation shall, and Obalon shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective TimeSurviving Corporation to, ~~Parent shall pay~~ honor all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses ~~for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing,~~ now existing in favor of the current or former directors, officers or employees, as the case may be, of ~~Parent~~ ReShape, Obalon or ~~the Company~~ its respective Subsidiaries as provided in their respective Organizational Documents or in any agreement to which ReShape, Obalon or any of its respective Subsidiaries is a party, which rights shall survive the Merger and shall continue in full force and ~~effect. The provisions of this Section 5.7 are intended to be in addition~~ effect to the extent permitted by Law. No such provision in any Organizational Document or other agreement of the Surviving Corporation or any Subsidiary of ReShape or Obalon shall be amended, modified or repealed in any manner that would adversely affect the rights ~~otherwise available~~ or protections thereunder to any such individual with respect to acts or omissions occurring at or prior to the ~~current~~ Effective Time. In addition, from and ~~former~~ after the Effective Time, all directors, officers and ~~directors of Parent~~ employees and all fiduciaries currently indemnified under any ReShape Plan who become directors, officers, employees or fiduciaries under an Obalon Plan will be entitled to the ~~Company by Law~~indemnity, ~~charter~~advancement and exculpation rights and protections afforded to directors, ~~statute, bylaw~~ officers and employees or ~~agreement, and shall operate for~~ fiduciaries under the ~~benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g)~~ applicable Obalon Plan. From and after the Effective Time, the Surviving Corporation shall, and Obalon shall cause the Surviving Corporation to, assume, be jointly and severally liable for, and honor, guaranty and stand surety for, in accordance with their respective terms, each of the ~~event Parent~~ covenants contained in this Section 6.07 without limit as to time. (c) Obalon shall, at the sole cost of the Surviving Corporation, obtain and fully pay for “tail” insurance policies with a claims period of at least six (6) years from and after the Effective Time with recognized insurance companies for the Persons who, as of the date of this Agreement, are covered by the existing directors’ and officers’ liability insurance and fiduciary liability insurance of Obalon (collectively, “D&O Insurance”), with terms, conditions, retentions and levels of coverage at least as favorable as the D&O Insurance with respect to matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the transactions or actions contemplated by this Agreement), with respect to the D&O Insurance. (d) If Obalon or the Surviving Corporation or any of their respective successors or assigns (i) ~~consolidates~~ shall consolidate with or ~~merges~~ merge into any other ~~Person~~ corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or ~~merger,~~ merger or (ii) ~~transfers~~ shall transfer all or substantially all of its properties and assets to any ~~Person~~individual, corporation or other entity, then, and in each such case, proper ~~provision~~ provisions shall be made so that the successors and assigns of ~~Parent~~ Obalon or the Surviving ~~Corporation, as the case may be,~~ Corporation shall ~~succeed to~~ assume all of the obligations set forth in this Section ~~5.7. Parent~~ 6.07. (e) The rights of the Indemnified Parties under this Section 6.07 shall be in addition to any rights such Indemnified Parties may have under the Organizational Documents of Obalon or ReShape any party or the comparable documents of any of such party’s Subsidiaries, or under any applicable Contracts or Laws in effect on the date of this Agreement and, in the case of such documents and Contracts, disclosed to Obalon and ReShape prior to the execution hereof, and the Surviving Corporation shall, and Obalon shall cause the Surviving Corporation to, honor and perform under all indemnification agreements entered into by to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, Obalon and ReShape or any ~~person who is a beneficiary under~~ of its respective Subsidiaries in effect on the ~~policies referred~~ date of this Agreement and disclosed to ~~in this Section 5.7~~ Obalon and ~~their heirs and representatives, without~~ ReShape prior to the ~~prior written consent of such affected D&O Indemnified Party or other person~~execution hereof.

Appears in 2 contracts

Samples: Merger Agreement (Obalon Therapeutics Inc), Merger Agreement (ReShape Lifesciences Inc.)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs, ~~each of Parent and~~ the Surviving ~~Corporation, jointly and severally,~~ Corporation shall indemnify and hold harmless each person who is now, or has been at any time prior to the date ~~hereof~~of this Agreement, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent or the Company and their respective Subsidiaries, respectively~~ CombiMatrix (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements,~~ disbursements incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent or of the Company~~CombiMatrix, whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under ~~applicable Law~~the DGCL for directors or officers of Delaware corporations. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from ~~each of Parent and~~ the Surviving ~~Corporation, jointly and severally,~~ Corporation upon receipt by ~~Parent or~~ the Surviving Corporation from the D&O Indemnified Party of a request therefor; ~~provided~~ provided, that any ~~such~~ person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, to the extent then required by the DGCL, as applicable, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The ~~provisions~~ Certificate of Incorporation and Bylaws of the ~~Organizational Documents~~ Surviving Corporation shall contain, and Invitae shall cause the Certificate of ~~Parent~~ Incorporation and Bylaws of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent that~~ CombiMatrix than are presently set forth in the ~~Organizational Documents~~ Certificate of ~~Parent as~~ Incorporation and Bylaws of ~~the date of this Agreement~~ CombiMatrix, which provisions shall not be amended, modified or repealed for a period of six ~~(6) years~~ years’ time from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this AgreementCombiMatrix. (c) ~~From and after the Effective Time~~CombiMatrix shall, ~~(i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately~~ prior to the ~~Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties~~Closing, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability purchase an insurance ~~policies,~~ policy with an effective date as of the Closing ~~Date, on commercially available terms and conditions and with coverage limits customary~~ which maintains in effect for ~~U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to~~ six years from the ~~Effective Time, a six (6)-year prepaid “tail policy” (~~Closing the ~~“D&O Tail Policy”) for the non-cancellable extension of the~~ current directors’ and officers’ liability ~~coverage of Parent’s existing directors’ and officers’~~ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directorsmaintained by CombiMatrix. (ed) ~~From and after the Effective Time, Parent~~ The Surviving Corporation shall pay all expenses, including reasonable attorneys’ fees, that ~~are~~ may be incurred by the persons referred to in this Section ~~5.7~~ 5.6 in connection with their ~~successful~~ enforcement of ~~the~~ their rights provided ~~to such persons~~ in this Section ~~5.7~~5.6. (fe) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 5.6 are intended to be in addition to the rights otherwise available to the current and former officers and directors of ~~Parent and the Company~~ CombiMatrix by ~~Law~~law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (gf) ~~From and after the Effective Time, in~~ In the event ~~Parent or~~ the Surviving Corporation or any of ~~their respective~~ its successors or assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any ~~Person~~person, or (iii) dissolves, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent or~~ the Surviving ~~Corporation~~Corporation (or Invitae, as in the case ~~may be,~~ of dissolution) shall succeed to the obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person5.6.

Appears in 2 contracts

Samples: Merger Agreement (Invitae Corp), Merger Agreement (CombiMatrix Corp)

Indemnification of Officers and Directors. (a) ~~From~~ Parent shall cause the ~~Effective Time through the sixth (6th) anniversary~~ Surviving Company Organizational Documents to contain provisions no less favorable with respect to indemnification, advancement of expenses, and exculpation from liabilities of present and former directors, officers, and employees of the ~~date~~ Company than are currently provided in the Company Organizational Documents, which provisions may not be amended, repealed, or otherwise modified in any manner that would adversely affect the rights thereunder of any such individuals until the later of (i) the expiration of the statute of limitations applicable to such matters and (ii) six (6) years from the First Effective Time, and, in the event that any Action is pending or asserted or any claim made during such period, until the disposition of any such Action or claim, unless such amendment, modification, or repeal is required by applicable Law, in which case Parent shall, and shall cause the Surviving Company to, make such changes to the Surviving Company Organizational Documents as to have the least adverse effect on ~~which~~ the rights of the individuals referenced in this Section 6.07. (b) Without limiting any additional rights that any Person may have, from and after the First Effective ~~Time occurs~~Time, ~~each of~~ Parent and the Surviving ~~Corporation~~Company (each, together with their successors and assigns, an “Indemnifying Party”) shall, jointly and severally, ~~shall~~ indemnify and hold harmless each ~~person who is now~~present (as of the First Effective Time) or former director or officer of the Company (each, together with such person’s heirs, executors, or ~~has been at any time prior to the date hereof~~administrators, ~~or who becomes prior to the Effective Time, a director, officer, fiduciary or agent of Parent or the Company and their respective Subsidiaries, respectively (the~~ an “~~D&O~~ Indemnified ~~Parties~~Party”), against all ~~claims, losses, liabilities~~obligations to pay a judgment, damages, ~~judgments~~settlement, ~~fines~~ or fine or penalty, and reasonable ~~fees, costs and~~ expenses (including legal expenses~~, including attorneys’ fees and disbursements,~~ ) incurred in connection with any Action or claim~~, action, suit, proceeding or investigation~~, whether civil, criminal, ~~administrative~~ administrative, arbitrative, or investigative, ~~arising out~~ and whether formal or informal, by reason of ~~or pertaining to~~ the fact that the ~~D&O~~ Indemnified Party is or was a an officer, director, ~~officer~~employee, ~~fiduciary~~ fiduciary, or agent of ~~Parent~~ the Company or its Subsidiary, or of another Entity if such service was at the request of the Company, whether asserted or claimed prior to, at at, or after the First Effective Time~~, in each case~~, to the fullest extent ~~permitted~~ provided for under ~~applicable Law~~existing indemnification agreements and other similar arrangements in effect as of prior to the date hereof. ~~Each D&O~~ In the event of any such Action or claim, each Indemnified Party ~~will be~~ is entitled to the advancement of reasonable expenses (including legal expenses) incurred in the defense of ~~any such claim, action, suit, proceeding~~ the Action or ~~investigation~~ claim from ~~each of Parent and~~ the Surviving ~~Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor;~~ Company (provided that any ~~such person~~ Person to whom expenses are advanced ~~provides an undertaking to Parent~~shall have provided, to the extent ~~then~~ required by the DGCL, an undertaking to repay such advances if it is ~~ultimately~~ finally determined that such ~~person~~ Person is not entitled to indemnification). (bc) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for For a period of no less than six (6) years ~~from~~ following the ~~Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the~~ First Effective Time, ~~were officers or directors of Parent. The Organizational Documents of~~ the Surviving ~~Corporation shall contain, and Parent~~ Company shall cause to be maintained in effect the ~~Organizational Documents~~ existing policies of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance (or a comparable replacement policy) with respect to claims arising from acts, errors or omissions that existed or occurred prior to or at the First Effective Time (the “D&O Policy”) containing coverage that is at least as protective to such directors and officers as the coverage, deductibles and amounts provided by such existing policies. Parent shall cause such D&O Policy to be maintained in full force and effect for their full term, ~~with an effective date as~~ and cause all obligations thereunder to be honored by the Surviving Company. Without limitation of the ~~Closing Date~~foregoing, ~~on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition~~the Company may, or if the Company is unable to, Parent ~~shall purchase~~may on its behalf, prior to the First Effective Time, purchase a six (6)-year “tail” prepaid insurance policy on the D&O Policy and in the event that Parent or the Company shall purchase such a “~~tail~~ tail” policy, Parent and the Surviving Company shall maintain such “tail” policy in full force and effect and continue to honor their respective obligations thereunder for so long as such “tail” policy shall be maintained in full force and effect; provided, however, that neither Parent nor the Surviving Company shall be obligated to pay aggregate annual premiums in excess of 300% of the amount paid for the policy year in effect immediately prior to the First Effective Time (the “~~D&O Tail Policy~~Maximum Premium”) ~~for~~ and (y) the ~~non-cancellable extension~~ Company shall not be permitted to obtain any “tail” or “runoff” officers’ and directors’ liability insurance policy with a cost in excess of the ~~directors’ and officers’ liability~~ Maximum Premium. If the aggregate premiums of any such insurance coverage ~~of Parent’s existing directors’ and officers’ insurance policies~~ exceed the Maximum Premium, then the Surviving Company will be obligated to obtain a policy with the greatest coverage available for a ~~claims reporting~~ cost not exceeding the Maximum Premium. (d) Without limiting any of the rights or ~~discovery period of at least six (6) years~~ obligations under this Section 6.07, from and after the ~~Effective Time with respect to any claim related to any period of time at or prior to the~~ Second Effective Time~~. During~~ , the ~~term~~ Surviving Company shall keep in full force and effect, and shall comply with the terms and conditions of, any agreement in effect as of the ~~D&O Tail Policy~~date hereof between or among the Company or its Subsidiary and any Indemnified Party providing for the indemnification of such Indemnified Party, and Parent ~~shall not take any action following~~ hereby guarantees the ~~Effective Time~~ obligations of the Surviving Company pursuant to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directorssuch agreements. (e) ~~From~~ This Section 6.07 shall survive the consummation of the Mergers and ~~after the Effective Time~~is intended to benefit, ~~Parent shall pay all expenses~~and is enforceable by, ~~including reasonable attorneys’ fees, that are incurred by the persons~~ any Person or Entity referred to in this Section ~~5.7 in connection with their successful enforcement of the rights~~ 6.07. The indemnification and advancement provided ~~to such persons~~ for in this Section ~~5.7. (f) All~~ 6.07 is not exclusive of any other rights to ~~exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior~~ which the Indemnified Party is entitled whether pursuant to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, ~~charter~~contract, ~~statute~~or otherwise. If Parent, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) From and after the Effective Time, in the event Parent or the Surviving ~~Corporation~~ Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person and ~~shall~~ is not be the continuing or surviving corporation or ~~entity of~~ Entity resulting from such consolidation or ~~merger,~~ merger or (ii) transfers all or ~~substantially all~~ majority of its properties and assets to any Person, then, and in each such case, Parent shall make proper provision ~~shall be made so~~ such that the respective successors and assigns of the Parent or and Surviving Company assume the ~~Surviving Corporation, as the case may be, shall succeed to the~~ applicable obligations set forth in this Section ~~5.7. Parent shall cause the Surviving Corporation to perform all~~ 6.07. (f) Each of the ~~obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended~~ Indemnified Parties or ~~otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person~~ other Persons who ~~is a beneficiary~~ are beneficiaries under the ~~policies~~ D&O Policy or the “tail” policy referred to in this Section ~~5.7 and their~~ 6.07 (and, after the death of any of the foregoing Persons, such Person’s heirs and representatives) are intended to be third party beneficiaries of this Section 6.07, ~~without~~ with full rights of enforcement as if a party thereto. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the ~~prior written consent~~ Company or its Subsidiary for any of ~~such affected D&O Indemnified Party~~ their respective directors, officers or other ~~person~~employees, it being understood and agreed that the indemnification provided for in this Section 6.07 is not prior to or in substitution for any such claims under such policies.

Appears in 2 contracts

Samples: Merger Agreement (Rocket Pharmaceuticals, Inc.), Merger Agreement (Renovacor, Inc.)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of ~~Parent~~ MEDS and the Surviving ~~Corporation, jointly and severally,~~ Corporation shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ MEDS or the ~~Company and their respective Subsidiaries~~Company, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ MEDS or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under ~~applicable Law~~the DGCL. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of ~~Parent~~ MEDS and the Surviving Corporation, jointly and severally, upon receipt by ~~Parent~~ MEDS or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to ~~Parent~~MEDS, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. Without otherwise limiting the D&O Indemnified Parties’ rights with regards to counsel, following the Effective Time, the D&O Indemnified Parties shall be entitled to continue to retain GS2Law PLLC, Nxxxxx Xxxxxxx Xxxxx & Sxxxxxxxxxx LLP or such other counsel selected by the D&O Indemnified Parties. (b) The provisions of the ~~Organizational Documents~~ certificate of ~~Parent~~ incorporation and bylaws of MEDS with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent~~ MEDS that are presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~ MEDS shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of ~~Parent~~MEDS, unless such modification is required by applicable Law. The ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation shall contain, and ~~Parent~~ MEDS shall cause the ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~MEDS. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) ~~Parent~~ MEDS shall fulfill and honor in all respects the obligations of ~~Parent~~ MEDS to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under ~~Parent~~MEDS’s Organizational Documents and pursuant to any indemnification agreements between ~~Parent~~ MEDS and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, ~~Parent~~ MEDS shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to ~~Parent. In addition~~MEDS, ~~Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension~~ and obtain as of the ~~directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’~~ Closing Date “tail” insurance policies ~~for~~ with a claims ~~reporting or discovery~~ period of ~~at least~~ six (6) years from ~~and after~~ the Effective Time with at least the same coverage and amounts, and containing terms and conditions that are not less advantageous to the D&O Indemnified Parties of MEDS when compared to the insurance maintained by MEDS as of the date hereof, in each case with respect to ~~any claim related~~ claims arising out of or relating to ~~any period of time at~~ events which occurred on or prior to the Effective ~~Time. During~~ Time (including in connection with the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directorstransactions contemplated by this Agreement). (e) From and after the Effective Time, ~~Parent~~ MEDS shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section ~~5.7~~ 6.7 in connection with their ~~successful~~ enforcement of the rights provided to such persons in this Section ~~5.7~~6.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 6.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of ~~Parent~~ MEDS and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their ~~representatives~~Representatives. (g) ~~From and after the Effective Time, in~~ In the event ~~Parent~~ MEDS or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or ~~merger,~~ merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ MEDS or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~6.7. ~~Parent~~ MEDS shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person6.7.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (TRxADE HEALTH, INC), Merger Agreement (TRxADE HEALTH, INC)

Indemnification of Officers and Directors. (a) ~~From~~ Subject to applicable Law, from the Effective Time through the ~~sixth (6th)~~ seventh anniversary of the date on which the Effective Time occurs, each of ~~Parent~~ Innovate and the Surviving ~~Corporation, jointly and severally,~~ Company shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Innovate and its Subsidiaries or the Company and ~~their respective~~ its Subsidiaries, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Innovate or of the ~~Company~~Company or any of their Subsidiaries (each, a “Proceeding”), whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. ~~Each~~ Subject to applicable law, each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any ~~such claim, action, suit, proceeding or investigation~~ Proceeding from each of ~~Parent~~ Innovate and the Surviving ~~Corporation~~Company, jointly and severally, upon receipt by ~~Parent~~ Innovate or the Surviving ~~Corporation~~ Company from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to ~~Parent~~Innovate or the Surviving Company, as applicable, to the extent then required by ~~the DGCL~~applicable Law, to repay such advances if it is ultimately determined that such person is not entitled to indemnification~~. (b)~~ . The provisions of the ~~Organizational Documents of Parent~~ Innovate Charter and Innovate Bylaws with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent~~ Innovate that are presently set forth in the ~~Organizational Documents of Parent as of the date of this Agreement~~ Innovate Charter and Innovate Bylaws shall not be amended, modified or repealed for a period of ~~six~~ seven (67) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of ~~Parent~~Innovate, unless such modification is required by applicable Law. ~~The Organizational Documents~~ To the extent permitted by applicable Law, the articles of association of the Surviving ~~Corporation~~ Company shall contain, and ~~Parent~~ Innovate shall cause the ~~Organizational Documents~~ articles of association of the Surviving ~~Corporation~~ Company to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents of Parent as of~~ Innovate Charter and Innovate Bylaws and the ~~date of this Agreement. (c)~~ Company Charter. From and after the Effective Time, (i) the Surviving ~~Corporation~~ Company shall fulfill and honor in all respects the obligations of the Company to ~~its~~ D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the ~~Company’s Organizational Documents~~ Company Charter and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) ~~Parent~~ Innovate shall fulfill and honor in all respects the obligations of ~~Parent~~ Innovate to ~~its~~ D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under ~~Parent’s Organizational Documents~~ the Innovate Charter or Innovate Bylaws and pursuant to any indemnification agreements between ~~Parent~~ Innovate and such D&O Indemnified ~~Parties~~Parties that were in effect prior to the date of this Agreement, with respect to claims arising out of matters occurring at or prior to the Effective Time. (db) From and after the Effective Time, ~~Parent~~ Innovate shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to ~~Parent~~Innovate. In addition, ~~Parent~~ Innovate shall purchase, prior to the Effective Time, a ~~six (6)-year~~ seven-year prepaid “D&O tail policy” ~~(the “D&O Tail Policy”)~~ for the non-cancellable extension of the directors’ and officers’ liability coverage of ~~Parent~~Innovate’s existing directors’ and officers’ insurance policies and Innovate’s existing fiduciary liability insurance policies for the Persons who, as of the date of this Agreement are covered by Innovate’s existing directors’ and officers’ insurance policies and/or the Company’s existing directors’ and officers’ insurance, as applicable, in each case for a claims reporting or discovery period of at least ~~six (6)~~ seven years from and after the Effective ~~Time with respect to any claim related to any period of time at or prior to the Effective~~ Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (ec) From and after the Effective Time, ~~Parent~~ Innovate shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section ~~5.7~~ 5.6 in connection with their successful enforcement of the rights provided to such persons in this Section ~~5.7~~5.6. (fd) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 5.6 are intended to be in addition to the rights otherwise available to the current and former officers and directors of ~~Parent~~ Innovate and the Company by ~~Law~~law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives~~. (g) From and after the Effective Time, in~~ . In the event ~~Parent~~ Innovate or the Surviving ~~Corporation~~ Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ Innovate or the Surviving ~~Corporation~~Company, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~5.6. ~~Parent~~ Innovate shall cause the Surviving ~~Corporation~~ Company to perform all of the obligations of the Surviving ~~Corporation~~ Company under this Section ~~5.7.~~ 5.6. (e) The ~~obligations set forth~~ covenants contained in this Section ~~5.7~~ 5.6 are intended to be for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties and their respective heirs and shall not be ~~terminated~~deemed exclusive of any other rights to which any such Person is entitled, ~~amended~~ whether pursuant to Law, contract or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other personotherwise.

Appears in 2 contracts

Samples: Merger Agreement (Innovate Biopharmaceuticals, Inc.), Merger Agreement (Innovate Biopharmaceuticals, Inc.)

Indemnification of Officers and Directors. (a) From and after the Effective ~~Time through the sixth (6th) anniversary of the date on which the Effective Time occurs~~Time, each of ~~Parent~~ Trooper and the Surviving ~~Corporation~~Corporation agrees that it shall indemnify, ~~jointly and severally, shall indemnify~~ defend and hold harmless each ~~person who is now~~present and former director, ~~or has been at~~ officer and employee of Ranger, each present and former director, member of the board of directors, officer and employee of any ~~time prior to the date hereof~~of Ranger’s Subsidiaries and any fiduciary under any Ranger Plan (in each case, ~~or who becomes prior to~~ when acting in such capacity), determined as of the Effective ~~Time, a director, officer, fiduciary or agent of Parent or the Company and their respective Subsidiaries, respectively~~ Time (the “~~D&O~~ Indemnified Parties”), against ~~all claims, losses, liabilities, damages, judgments, fines and reasonable fees,~~ any costs ~~and expenses,~~ or expenses (including attorneys’ fees and disbursements), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the ~~D&O~~ Indemnified Party is or was a director, officer, employee or fiduciary of Ranger or ~~agent of Parent or~~ a member of the ~~Company~~board of directors, officer, employee or fiduciary of any of its Subsidiaries or a fiduciary under any Ranger Plan, whether asserted or claimed prior to, at or after the Effective ~~Time,~~ Time (including with respect to any acts or omissions in ~~each case~~connection with this Agreement and the transactions and actions contemplated by this Agreement), to the fullest extent that Ranger would have been permitted under applicable ~~Law. Each D&O Indemnified Party will be entitled~~ Law and the applicable Organizational Documents (and, to ~~advancement~~ the extent not contrary to applicable Law or its Organizational Documents, any indemnification agreement) in effect on the date of this Agreement to indemnify such Person, and Trooper or the Surviving Corporation shall also promptly advance expenses as incurred in ~~the defense~~ advance of any final disposition of any such claim, action, suit, proceeding or investigation ~~from each~~ to the fullest extent that Ranger or its applicable Subsidiary would have been permitted under applicable Law or its Organizational Documents (and, to the extent not contrary to applicable Law or its Organizational Documents, any indemnification agreement) in effect on the date of ~~Parent and~~ this Agreement; provided, however, that the ~~Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person~~ Person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, if and only to the extent ~~then~~ required by applicable Law or the ~~DGCL~~applicable Organizational Documents (as in effect on the date hereof), to repay such advances if it is ultimately determined that such ~~person~~ Person is not entitled to indemnification~~. (b) The provisions of the Organizational Documents of Parent~~ , and provided, further, that any determination required to be made with respect to ~~indemnification~~whether a director’s, ~~advancement of expenses and exculpation of present and former directors and officers of Parent that are~~ officer’s, employee’s or fiduciary’s conduct complied with the standards set forth under applicable Law and the applicable Organizational Documents (or the applicable organizational documents of a Subsidiary or Ranger Plan) shall be made by independent counsel selected by the Indemnified Party. In the event of any claim, action, suit, proceeding or investigation, (i) neither Trooper nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any claim, action, suit, proceeding or investigation (and in which indemnification could be sought by Indemnified Parties hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such claim, action, suit, proceeding or investigation or such Indemnified Party otherwise consents in writing, and (ii) the Surviving Corporation shall cooperate in the ~~Organizational Documents~~ defense of ~~Parent as of~~ such matter. The parties agree that this Section 6.08(a) does not purport to limit any rights that any Indemnified Party may have under any employment agreement, indemnification agreement, or Ranger Plan in effect on the date of this Agreement and disclosed to either party prior to the execution hereof, which provisions shall not be amended, repealed or otherwise modified ~~or repealed for a period of six (6) years from the Effective Time~~ in a any manner that would materially adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreementany such individual. (cb) From and after the Effective Time, ~~(i)~~ Trooper shall, and shall cause the Surviving Corporation ~~shall fulfill and~~ to, honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses ~~for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing,~~ now existing in favor of the current or former directors, officers or employees, as the case may be, of ~~Parent~~ Ranger or ~~the Company~~ its Subsidiaries as provided in their respective Organizational Documents or in any agreement to which Ranger or any of its Subsidiaries is a party, which rights shall survive the Merger and shall continue in full force and ~~effect. The provisions of this Section 5.7 are intended to be in addition~~ effect to the extent permitted by Law. No such provision in any Organizational Document or other agreement of the Surviving Corporation or any Subsidiary of Ranger shall be amended, modified or repealed in any manner that would adversely affect the rights ~~otherwise available~~ or protections thereunder to any such individual with respect to acts or omissions occurring at or prior to the ~~current~~ Effective Time. In addition, from and ~~former~~ after the Effective Time, all directors, officers and ~~directors of Parent~~ employees and ~~the Company by Law~~all fiduciaries currently indemnified under a Ranger Plan who become directors, ~~charter~~officers, ~~statute, bylaw~~ employees or ~~agreement, and shall operate for the benefit of, and~~ fiduciaries under a Trooper Plan shall be ~~enforceable by~~entitled to the indemnity, ~~each of~~ advancement and exculpation rights and protections afforded to directors, officers and employees or fiduciaries under the ~~D&O Indemnified Parties, their heirs and their representatives. (g)~~ applicable Trooper Plan. From and after the Effective Time, Trooper shall assume, be jointly and severally liable for, and honor, guaranty and stand surety for, and shall cause the Surviving Corporation and its Subsidiaries to honor and perform, in accordance with their respective terms, each of the ~~event Parent~~ covenants contained in this Section 6.08 without limit as to time. (c) The Surviving Corporation shall, in its sole discretion, either (i) continue to maintain in effect for a period of at least six (6) years from and after the Effective Time for the Persons who, as of the date of this Agreement, are covered by Ranger’s directors’ and officers’ liability insurance and fiduciary liability insurance (collectively, “D&O Insurance”) D&O Insurance with recognized insurance companies and with terms, conditions, retentions and levels of coverage at least as favorable as provided in Ranger’s existing policies as of the date of this Agreement, or, if such insurance is unavailable, the Surviving Corporation (or its successor) shall purchase the best available D&O Insurance from a recognized insurance company for such six-year period with terms, conditions, retentions and with levels of coverage at least as favorable as provided in Ranger’s existing policies as of the date of this Agreement; or (ii) obtain and fully pay for “tail” insurance policies with a claims period of at least six (6) years from and after the Effective Time with recognized insurance companies for the Persons who, as of the date of this Agreement, are covered by Ranger’s existing D&O Insurance, with terms, conditions, retentions and levels of coverage at least as favorable as Ranger’s existing D&O Insurance with respect to matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the transactions or actions contemplated by this Agreement), with respect to Ranger’s D&O Insurance. (d) If Trooper or the Surviving Corporation or any of their respective successors or assigns (i) ~~consolidates~~ shall consolidate with or ~~merges~~ merge into any other ~~Person~~ corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or ~~merger,~~ merger or (ii) ~~transfers~~ shall transfer all or substantially all of its properties and assets to any ~~Person~~individual, corporation or other entity, then, and in each such case, proper ~~provision~~ provisions shall be made so that the successors and assigns of ~~Parent~~ Trooper or the Surviving ~~Corporation, as the case may be,~~ Corporation shall ~~succeed to~~ assume all of the obligations set forth in this Section ~~5.7. Parent~~ 6.08. (e) The rights of the Indemnified Parties under this Section 6.08 shall be in addition to any rights such Indemnified Parties may have under the Organizational Documents of Ranger or the comparable documents of any of Ranger’s Subsidiaries, or under any applicable Contracts or Laws in effect on the date of this Agreement and, in the case of such documents and Contracts, disclosed to Trooper prior to the execution hereof, and Trooper shall, and shall cause the Surviving Corporation to, honor and perform under all indemnification agreements entered into by Ranger or any of its Subsidiaries in effect on the date of this Agreement and disclosed to ~~perform all~~ Trooper prior to the execution hereof. (f) In the event that, after the Effective Time, any excise tax is payable by any Indemnified Party pursuant to Section 4985 of the ~~obligations~~ Code, as such section may be amended or modified (or, for the avoidance of doubt, any successor section), Trooper shall, or shall cause the Surviving Corporation ~~under this Section 5.7. The obligations set forth~~ to, pay to each such individual, by no later than the time such excise tax is required to be paid by such individual or withheld by Trooper or its Subsidiary, an amount equal to the sum of the excise tax payable by such individual, plus the amount necessary to put the individual in ~~this Section 5.7 shall~~ the same after-tax position (taking into account any applicable Taxes, including taxes payable upon such payment) that such individual would have been in if such individual had not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of incurred such ~~affected D&O Indemnified Party or other person~~excise tax.

Appears in 2 contracts

Samples: Merger Agreement (Wright Medical Group Inc), Merger Agreement (Tornier N.V.)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of Parent and the Surviving ~~Corporation~~Corporation shall, jointly and severally, ~~shall~~ indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent or~~ the Company ~~and their respective Subsidiaries, respectively~~ or any of its subsidiaries (the ~~“D&O Indemnified~~ "Covered Parties”"), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ ' fees and ~~disbursements~~disbursements (collectively, "Costs"), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the ~~D&O Indemnified~~ Covered Party is or was ~~a director, officer, fiduciary~~ an officer or ~~agent of Parent or~~ director of the ~~Company~~Company or any of its subsidiaries (including the taking of any action or the failure to take any action as a director or officer of any Acquired Corporation in connection with the Contemplated Transactions), whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under ~~applicable Law~~the DGCL for officers and directors of Delaware corporations. Each ~~D&O Indemnified~~ Covered Party will be ~~entitled~~ entitled, subject to applicable Legal Requirements, to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving ~~Corporation, jointly and severally, upon~~ Corporation within ten business days of receipt by Parent or the Surviving Corporation from the ~~D&O Indemnified~~ Covered Party of a request therefor; provided that any ~~such~~ person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, to the extent ~~then~~ required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The ~~provisions~~ certificate of ~~the Organizational Documents of Parent with respect to indemnification, advancement of expenses~~ incorporation and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents by-laws of the Surviving Corporation shall contain, and Parent shall cause the ~~Organizational Documents~~ certificate of incorporation and by-laws of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers ~~as those~~ of the Company and its subsidiaries than are presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and by-laws of the ~~date of this Agreement~~Company. (c) ~~From and after~~ Subject to the ~~Effective Time~~next sentence, ~~(i)~~ the Surviving Corporation shall ~~fulfill~~ maintain, and ~~honor~~ Parent shall cause the Surviving Corporation to maintain, at no expense to the beneficiaries, in ~~all respects~~ effect for six years from the ~~obligations~~ Effective Time the current policies of the ~~Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents~~ directors' and ~~pursuant to any indemnification agreements between~~ officers' liability insurance maintained by the Company ~~and such D&O Indemnified Parties,~~ with respect to ~~claims arising out of~~ matters existing or occurring at or prior to the Effective Time ~~and~~ (~~ii) Parent shall fulfill and honor~~ including the transactions contemplated by this Agreement), so long as the annual premium therefor would not be in ~~all respects~~ excess of 200% of the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or last annual premium paid prior to the Effective ~~Time~~Time (such 200%, the "Maximum Premium"). If the Company's existing insurance expires, is terminated or canceled during such six-year period or exceeds the Maximum Premium, the Surviving Corporation shall obtain, and Parent shall cause the Surviving Corporation to obtain, as much directors' and officers' liability insurance as can be obtained for the remainder of such period for an annualized premium not in excess of the Maximum Premium, on terms and conditions no less advantageous to the Covered Parties than the Company's existing directors' and officers' liability insurance. (d) ~~From and~~ Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time~~, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date~~) is made against any Covered Party, on ~~commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase,~~ or prior to the sixth anniversary of the Effective Time, ~~a six (6)-year prepaid “tail policy” (~~the ~~“D&O Tail Policy”~~provisions of Section 5.6(a) ~~for~~ shall continue in effect until the ~~non-cancellable extension~~ final disposition of ~~the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting~~ such claim, action, suit, proceeding or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directorsinvestigation. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) From and after the Effective Time, in In the event that Parent or the Surviving Corporation or any of ~~their respective~~ its successors or assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving corporation or entity of such consolidation or ~~merger,~~ merger or (ii) transfers or conveys all or substantially all of its properties and assets to any ~~Person~~person, then, and in each such case, proper provision shall be made so that the successors ~~and~~ or assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person5.6.

Appears in 2 contracts

Samples: Merger Agreement (Manufacturers Services LTD), Merger Agreement (Manufacturers Services LTD)

Indemnification of Officers and Directors. (a) ~~From~~ For a period of six (6) years from the Effective Time, Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time ~~through~~ (whether asserted or claimed prior to, at or after the Effective Time) existing in favor of the current or former directors or officers of any Acquired Corporation pursuant to the organizational documents of the Company and any indemnification or other similar agreements of any Acquired Corporation set forth in Section 5.5(a) of the Company Disclosure Schedule, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms, and Parent shall cause the Acquired Corporations to perform their obligations thereunder. Without limiting the foregoing, during the period commencing at the Effective Time and ending on the sixth ~~(6th)~~ anniversary of the ~~date on which~~ Effective Time, Parent shall, and shall cause the ~~Effective Time occurs~~Acquired Corporations to, ~~each of Parent and the Surviving Corporation, jointly and severally, shall~~ indemnify and hold harmless each ~~person~~ individual who is ~~now, or has been at any time prior to~~ as of the date ~~hereof~~of this Agreement, or who becomes prior to the Effective Time, a ~~director~~director or officer of any Acquired Corporation or who is as of the date of this Agreement, ~~officer~~or who thereafter commences prior to the Effective Time, ~~fiduciary~~ serving at the request of any Acquired Corporation as a director or ~~agent~~ officer of ~~Parent or the Company and their respective Subsidiaries, respectively~~ another Person (the “~~D&O~~ Indemnified ~~Parties~~Persons”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, ~~suit, proceeding~~ suit or ~~investigation~~proceeding, whether civil, criminal, administrative or ~~investigative~~investigative (including with respect to matters existing or occurring at or prior to the Effective Time, including this Agreement and the Transactions), arising out of or pertaining to the fact that the ~~D&O~~ Indemnified ~~Party~~ Person is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ any Acquired Corporation or is or was serving at the request of ~~the Company~~any Acquired Corporation as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under applicable ~~Law~~Legal Requirements. ~~Each D&O Indemnified Party will be entitled to advancement of expenses incurred in~~ In the ~~defense~~ event of any such claim, action, ~~suit~~suit or proceeding, ~~proceeding~~ Parent shall, and shall cause the Acquired Corporations to, (x) pay, in advance of the final disposition of such claim, action, suit or ~~investigation from each of Parent and~~ proceeding, any expenses incurred in defense thereof by the ~~Surviving Corporation, jointly and severally,~~ Indemnified Person upon receipt ~~by Parent or the Surviving Corporation from the D&O Indemnified Party~~ of ~~a request therefor; provided that any such person to whom expenses are advanced provides~~ an undertaking ~~to Parent, to the extent then required~~ by ~~the DGCL,~~ such Indemnified Person to repay such ~~advances~~ amount if it is shall ultimately be determined that such ~~person~~ Indemnified Person is not entitled to ~~indemnification~~be indemnified pursuant to the preceding sentence and (y) reasonably cooperate in the defense of any such matter. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for For a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective ~~Time~~ Time, Parent shall cause the Surviving Corporation to either maintain in effect its current policies of directors’ and officers’ and fiduciary liability insurance maintained by or for the benefit of the Acquired Corporations or provide a substitute policy for the Acquired Corporations and their current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by or for the benefit of the Acquired Corporations as of the date of this Agreement, in either case, of not less than the existing coverage as of the date of this Agreement and having other terms that are in aggregate not less favorable to the insured persons than the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by or for the benefit of the Acquired Corporations with respect to ~~any claim related to any period of time~~ claims arising from facts or events that occurred at or before the Effective Time (with insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ and fiduciary liability insurance), except that in no event shall Parent or the Surviving Corporation be required to pay with respect to such insurance policies more than 300% of the aggregate annual premium most recently paid by the Acquired Corporations prior to the date of this Agreement (the “Maximum Amount”), and if the Surviving Corporation is unable to obtain the insurance required by this Section 5.5(b) it shall obtain as much comparable insurance as possible for the years within such six (6)-year period for a premium not exceeding the Maximum Amount. In lieu of such insurance, prior to the Closing Date the Company may, at its option, purchase a “tail” directors’ and officers’ and fiduciary liability insurance policy for the Acquired Corporations and their current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by or for the benefit of the Acquired Corporations, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by or for the benefit of the Acquired Corporations with respect to claims arising from facts or events that occurred at or before the Effective Time; provided that in no event shall the cost of any such tail policy exceed the Maximum Amount, and if such cost would exceed the Maximum Amount, then the Company may obtain a tail policy with the greatest coverage available for a cost not exceeding the Maximum Amount. ~~During~~ Parent and the ~~term~~ Surviving Corporation shall maintain such policies in full force and effect for a period of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. six (e6) ~~From and~~ years after the Effective Time, ~~Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by~~ and continue to honor the ~~persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7~~obligations thereunder. (fc) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) From and after the Effective Time, in In the event ~~Parent or the Surviving~~ that any Acquired Corporation or any of ~~their respective~~ its successors or assigns (i) consolidates with or merges into any other Person and ~~shall~~ is not be the continuing or surviving corporation or ~~entity~~ Entity of such consolidation or ~~merger,~~ merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent shall cause the applicable Acquired Corporation to make proper provision ~~shall be made~~ so that the successors and assigns of ~~Parent or the Surviving Corporation, as the case may be, shall succeed to~~ such Acquired Corporation assume the obligations set forth in this Section ~~5.7. Parent shall cause the Surviving Corporation to perform all~~ 5.5. (d) The provisions of ~~the obligations of the Surviving Corporation under~~ this Section ~~5.7~~5.5 (i) shall survive the Effective Time and (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Indemnified Persons), his or her heirs, successors, assigns and representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification, advancement of expenses, exculpation or contribution that any such Person may have by contract or otherwise. ~~The obligations set forth in~~ Unless required by applicable Legal Requirement, this Section ~~5.7 shall~~ 5.5 may not be ~~terminated~~amended, ~~amended~~ altered or ~~otherwise modified~~ repealed after the Effective Time in such a manner as to adversely affect the rights of any ~~manner that adversely affects any D&O~~ Indemnified ~~Party,~~ Person or any ~~person who is a beneficiary under the policies referred to in this Section 5.7 and~~ of their ~~heirs and representatives~~successors, assigns or heirs, without the prior written consent of ~~such~~ the affected ~~D&O~~ Indemnified ~~Party or other person~~Person.

Appears in 2 contracts

Samples: Acquisition Agreement, Merger Agreement (IVERIC Bio, Inc.)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of ~~Parent~~ TPB and the Surviving ~~Corporation, jointly and severally,~~ Company shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ TPB or ~~the Company~~ SDI and their respective Subsidiaries, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ TPB or of ~~the Company~~SDI, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of ~~Parent~~ TPB and the Surviving ~~Corporation~~Company, jointly and severally, upon receipt by ~~Parent~~ TPB or the Surviving ~~Corporation~~ Company from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to ~~Parent~~TPB, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the ~~Organizational Documents~~ certificate of ~~Parent~~ incorporation and bylaws of TPB with respect to indemnification, advancement of ~~expenses~~ expenses, and exculpation of present and former directors and officers of ~~Parent~~ TPB that are presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~ TPB shall not be amended, ~~modified~~ modified, or repealed for a period of six ~~(6)~~ years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of ~~Parent~~TPB. The Organizational Documents of the Surviving ~~Corporation~~ Company shall contain, and ~~Parent~~ TPB shall cause the Organizational Documents of the Surviving ~~Corporation~~ Company to so contain, provisions no less favorable with respect to indemnification, advancement of ~~expenses~~ expenses, and exculpation of present and former ~~directors~~ managers and officers as those presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~TPB. (c) From and after the Effective Time, (i) the Surviving ~~Corporation~~ Company shall fulfill and honor in all respects the obligations of ~~the Company~~ SDI to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under ~~the Company~~SDI’s Organizational Documents and pursuant to any indemnification agreements between ~~the Company~~ SDI and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) ~~Parent~~ TPB shall fulfill and honor in all respects the obligations of ~~Parent~~ TPB to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under ~~Parent~~TPB’s Organizational Documents and pursuant to any indemnification agreements between ~~Parent~~ TPB and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, ~~Parent~~ TPB shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits ~~customary for U.S. public companies similarly situated~~ no less favorable to ~~Parent~~TPB than in effect as of the date of this Agreement (provided, that TPB may substitute therefor policies of at least the same coverage containing terms and conditions which are no less advantageous). In addition, ~~Parent~~ SDI shall purchase, prior to the Effective Time, a six ~~(6)-year~~ year prepaid “tail policy” ~~(the “D&O Tail Policy”)~~ for the non-cancellable extension of the directors’ and officers’ liability coverage of ~~Parent~~SDI’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six ~~(6)~~ years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective ~~Time. During~~ Time (the ~~term of the~~ “SDI D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors”). (e) From and after the Effective Time, ~~Parent~~ TPB shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section ~~5.7~~ 5.6 in connection with their successful enforcement of the rights provided to such persons in this Section ~~5.7~~5.6. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 5.6 are intended to be in addition to the rights otherwise available to the current and former officers and directors of ~~Parent~~ TPB and ~~the Company~~ SDI by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) ~~From and after the Effective Time, in~~ In the event ~~Parent~~ TPB or the Surviving ~~Corporation~~ Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving ~~corporation or entity~~ Entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ TPB or the Surviving ~~Corporation~~Company, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~5.6. ~~Parent~~ TPB shall cause the Surviving ~~Corporation~~ Company to perform all of the obligations of the Surviving ~~Corporation~~ Company under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person5.6.

Appears in 2 contracts

Samples: Merger Agreement (Turning Point Brands, Inc.), Merger Agreement (Standard Diversified Inc.)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of Parent and the Surviving ~~Corporation~~Company shall, jointly and severally, ~~shall~~ indemnify and hold harmless each ~~person~~ Person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of Parent or ~~the Company and their respective Subsidiaries, respectively~~ a Subsidiary thereof (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of Parent or ~~of the Company~~a Subsidiary thereof, whether asserted or claimed prior to, at or after the Effective ~~Time~~Time and (ii) reimburse each D&O Indemnified Party for any legal or other expenses reasonably incurred by such D&O Indemnified Party in connection with defending any such claims, losses, liabilities, damages, judgments and fines as such expenses are incurred, in each ~~case,~~ case to the fullest extent permitted under ~~applicable Law~~the DGCL for directors or officers of Delaware corporations. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving ~~Corporation~~Company, jointly and severally, upon receipt by Parent or the Surviving ~~Corporation~~ Company from the D&O Indemnified Party of a request therefor; ~~provided~~ provided, that any ~~such~~ person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, ~~to the extent then required by the DGCL~~as applicable, to repay such advances if it is ultimately determined in a final and non-appealable judgment of a court of competent jurisdiction that such person is not entitled to ~~indemnification~~indemnification under applicable law. (b) The ~~provisions~~ certificate of incorporation and bylaws of Parent and the certificate of formation and operating agreement of Surviving Company shall contain, and Parent shall cause the certificate of formation and operating agreement of the ~~Organizational Documents of Parent~~ Surviving Company to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent ~~that~~ or a Subsidiary thereof than are presently set forth in ~~the Organizational Documents~~ Parent’s certificate of ~~Parent as of the date of this Agreement~~ incorporation and bylaws, which provisions shall not be amended, modified or repealed for a period of six ~~(6) years~~ years’ time from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of ~~Parent. The Organizational Documents of the Surviving Corporation shall contain, and~~ Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreementor a Subsidiary thereof. (c) ~~From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior~~ Prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective TimeClosing, Parent shall ~~maintain directors’ and officers’ liability insurance policies~~obtain and, ~~with an effective date as of~~ within 30 days after the ~~Closing Date~~Closing, ~~on commercially available terms and conditions and with coverage limits customary~~ fully pay for ~~U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid~~ “~~tail policy~~tail” ~~(the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’~~ insurance policies ~~for~~ with a claims ~~reporting or discovery~~ period of at least six (6) years from ~~and after~~ the Effective Time with at least $10 million in the aggregate of Side A DIC coverage and at least $15 million in the aggregate of Side A/B/C coverage and otherwise containing terms and conditions that are comparable to Parent’s existing policies with respect to ~~any claim related~~ claims arising out of or relating to ~~any period of time~~ events which occurred before or at ~~or prior to~~ the Effective ~~Time~~Time (including in connection with the transactions contemplated by this Agreement) (the “D&O Tail Policy”). During the term of the D&O Tail Policy, Parent shall not (and shall cause the Surviving Company not to) take any action ~~following the Effective Time~~ to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or ~~waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors~~waived. (ed) ~~From and after the Effective Time,~~ Parent shall pay all reasonable expenses, including reasonable attorneys’ fees, that ~~are~~ may be incurred by ~~the persons referred to in this Section 5.7~~ each D&O Indemnified Party in connection with ~~their successful~~ its enforcement of ~~the~~ its rights provided ~~to such persons~~ in this Section 5.7. (fe) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the ~~current and former officers and directors~~ D&O Indemnified Parties by law, the Parent’s certificate of ~~Parent and~~ incorporation (as in effect on the ~~Company by Law, charter~~date of this Agreement), statute, ~~bylaw~~ the Parent’s bylaws (as in effect on the date of this Agreement) or ~~agreement~~Contract (as in effect on the date of this Agreement), which shall survive the Effective Time and shall ~~operate for~~ continue in full force and effect in accordance with their respective terms. The obligations of Parent under this Section 5.7 shall survive the ~~benefit of,~~ consummation of the Merger and shall not be ~~enforceable by~~terminated or modified in such a manner as to adversely affect any D&O Indemnified Party to whom this Section 5.7 applies without the consent of such affected D&O Indemnified Party (it being expressly agreed that the D&O Indemnified Parties to whom this Section 5.7 applies, as well as their heirs and representatives, shall be third party beneficiaries of this Section 5.7, each of whom may enforce the ~~D&O Indemnified Parties, their heirs and their representatives~~provisions of this Section 5.7). (gf) ~~From and after the Effective Time, in~~ In the event Parent or the Surviving ~~Corporation~~ Company or any of their respective successors or assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving corporation or surviving company or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any ~~Person~~person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving ~~Corporation~~Company, as the case may be, shall succeed to the obligations set forth in this Section 5.7. Parent shall cause the Surviving ~~Corporation~~ Company to perform all of the obligations of the Surviving ~~Corporation~~ Company under this Section 5.7. ~~The obligations set forth~~ Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to Parent or its officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 5.7 ~~shall~~ is not ~~be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party~~prior to, or in substitution for, any ~~person who is a beneficiary~~ such claims under ~~the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of~~ any such ~~affected D&O Indemnified Party or other person~~policies.

Appears in 2 contracts

Samples: Merger Agreement (Flex Pharma, Inc.), Merger Agreement

Indemnification of Officers and Directors. (a) From and after the Chilean Effective ~~Time through~~ Time, in the ~~sixth (6th) anniversary~~ event of ~~the date on~~ any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, in which ~~the Effective Time occurs, each of Parent and the Surviving Corporation, jointly and severally, shall indemnify and hold harmless each person~~ any Person who is now, or has been at any time prior to the date ~~hereof~~of this Agreement, or who becomes prior to the Chilean Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ CorpBanca or ~~the Company and~~ Itaú Chile or any of their ~~respective Subsidiaries, respectively~~ Subsidiaries (the “~~D&O~~ Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Chilean Effective Time, CorpBanca shall indemnify, defend and hold harmless, to the fullest extent permitted by applicable Law, each such Indemnified Party against any Liability (including advancement of reasonable attorneys’ fees and expenses prior to the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking required by applicable Law)~~, against all claims, losses, liabilities, damages~~, judgments, fines and ~~reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred~~ amounts paid in settlement in connection with any such threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) ~~The provisions~~ Without limiting the indemnification and other rights provided in clause (a), all rights to indemnification and all limitations on Liability existing in favor of the directors, officers and employees of CorpBanca or Itaú Chile and their respective Subsidiaries as provided in their respective Organizational Documents ~~of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth~~ as in ~~the Organizational Documents of Parent~~ effect as of the date of this Agreement ~~shall not be amended, modified~~ or ~~repealed for a period of six (6) years from the Effective Time~~ in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth any indemnification agreement in ~~the Organizational Documents of Parent as of~~ existence on the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, Agreement with ~~respect to claims arising out of matters occurring at~~ CorpBanca or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at Itaú Chile or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement Subsidiaries shall survive the Chilean Merger and shall continue in full force and ~~effect. The provisions of~~ effect to the fullest extent permitted by Law and shall be honored by CorpBanca and its Subsidiaries or their respective successors as if they were the indemnifying party thereunder, without any amendment thereto; provided that nothing contained in this Section ~~5.7 are intended~~ 4.12 shall be deemed to preclude any liquidation, consolidation or merger of any CorpBanca or Itaú Chile Subsidiaries, in which case all of such rights to indemnification and limitations on Liability shall be deemed to so survive and continue notwithstanding any such liquidation, consolidation or merger. (c) CorpBanca, from and after the Chilean Effective Time, will directly or indirectly cause the Persons who served as directors or officers of CorpBanca or Itaú Chile, immediately prior to the Chilean Effective Time, to be ~~in addition~~ covered by CorpBanca’s or Itaú Chile’s existing directors’ and officers’ liability insurance policy with respect to acts or omissions occurring prior to the ~~rights otherwise available to the current and former~~ Chilean Effective Time, which were committed by such officers and directors ~~of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties,~~ in their ~~heirs and their representatives. (g) From and after the Effective Time, in the event Parent or the Surviving Corporation or any of their respective successors or assigns~~ capacity as such; provided that (i) ~~consolidates with or merges into any other Person~~ CorpBanca may substitute therefor policies of at least the same coverage and ~~shall~~ amounts containing terms and conditions which are not ~~be the continuing or surviving corporation or entity of~~ less advantageous than such ~~consolidation or merger~~policy, or (ii) ~~transfers all~~ in no event shall CorpBanca be required to expend more than 250% per year of coverage of the amount currently expended by CorpBanca or ~~substantially all~~ Itaú Chile per year of ~~its properties~~ coverage as of the date of this Agreement (the “Maximum Amount”) to maintain or procure insurance coverage pursuant hereto and ~~assets~~ (iii) if notwithstanding the use of reasonable best efforts to ~~any Person~~do so, ~~then~~CorpBanca is unable to maintain or obtain the insurance called for by this Section 4.11(c), CorpBanca shall obtain as much comparable insurance as available for the Maximum Amount. Such insurance coverage shall commence at the Chilean Effective Time and ~~in each such case~~will be provided for a period of no less than six years after the Chilean Effective Time. In lieu of the foregoing, ~~proper provision shall be made so that~~ CorpBanca, upon the ~~successors and assigns~~ consent of ~~Parent~~ the other Party, may obtain at or ~~the Surviving Corporation, as the case may be, shall succeed~~ prior to the obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other personChilean

Appears in 2 contracts

Samples: Transaction Agreement (Saieh Bendeck Alvaro), Transaction Agreement

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of ~~Parent~~ Tigris and the Surviving ~~Corporation~~Corporation shall, jointly and severally, ~~shall~~ indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Tigris or ~~the Company and their respective Subsidiaries, respectively~~ Potomac (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Tigris or ~~of the Company~~Potomac, whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under ~~applicable Law~~the DGCL for directors or officers of Delaware corporations. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of ~~Parent~~ Tigris and the Surviving Corporation, jointly and severally, upon receipt by ~~Parent~~ Tigris or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any ~~such~~ person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, to the extent then required by the ~~DGCL~~DGCL or the laws of the State of California, as applicable, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The ~~provisions~~ certificate of incorporation and bylaws of each of Tigris and the Surviving Corporation shall contain, and Tigris shall cause the certificate of incorporation and bylaws of the ~~Organizational Documents of Parent~~ Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent that~~ each of Tigris and Potomac than are presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent~~ incorporation and bylaws of Tigris and Potomac, as ~~of the date of this Agreement~~ applicable, which provisions shall not be amended, modified or repealed for a period of six ~~(6) years~~ years’ time from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this AgreementTigris or Potomac. (c) ~~From~~ Potomac shall negotiate and ~~after the Effective Time~~Tigris shall purchase an insurance policy, ~~(i) the Surviving Corporation shall fulfill and honor in all respects the obligations~~ with an effective date as of the ~~Company to its D&O Indemnified Parties as of immediately prior to~~ Closing, which maintains in effect for six years from the Closing the current directors’ and officers’ liability insurance policies maintained by Potomac (provided that Tigris may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable); provided, however, that in no event shall Tigris be required to expend pursuant to ~~any indemnification provisions under the Company’s Organizational Documents and pursuant~~ this Section 5.7(c) more than an amount equal to ~~any indemnification agreements between the Company and~~ 300% of current annual premiums paid by Potomac for such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Timeinsurance. (d) ~~From and after the Effective Time, Parent~~ Tigris shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the ~~Closing Date~~Closing, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directorsTigris. (e) ~~From and after the Effective Time, Parent~~ Tigris shall pay all expenses, including reasonable attorneys’ fees, that ~~are~~ may be incurred by the persons referred to in this Section 5.7 in connection with their ~~successful~~ enforcement of ~~the~~ their rights provided ~~to such persons~~ in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of ~~Parent~~ Tigris and ~~the Company~~ Potomac by ~~Law~~law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) ~~From and after the Effective Time, in~~ In the event ~~Parent~~ Tigris or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any ~~Person~~person, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ Tigris or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.7. ~~Parent~~ Tigris shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person.

Appears in 2 contracts

Samples: Merger Agreement (InterWest Partners IX, LP), Merger Agreement (Transcept Pharmaceuticals Inc)

Indemnification of Officers and Directors. (a) From ~~the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs, each of Parent~~ and ~~the Surviving Corporation, jointly and severally, shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to~~ after the Effective Time, ~~a director~~to the fullest extent permitted by Law, ~~officer~~each of Pi and the Surviving Corporation agrees that it shall, ~~fiduciary or agent~~ and shall cause each of ~~Parent or the Company and~~ their respective ~~Subsidiaries~~Subsidiaries to, ~~respectively~~ jointly and severally indemnify, defend and hold harmless (and advance expenses in connection therewith) each present and former (i) director and officer of Lambda or any of the Lambda Subsidiaries or any other Entity that was serving in such capacity at Lambda’s request or (ii) individual serving as a fiduciary of any benefit plan of Lambda or any Lambda Subsidiary (the “~~D&O~~ Indemnified Parties”), against ~~all claims, losses, liabilities, damages, judgments, fines and reasonable fees,~~ any costs ~~and expenses,~~ or expenses (including attorneys’ and other professionals’ fees and disbursements), judgments, fines, penalties, losses, claims, damages or liabilities or amounts that are paid in settlement, of or incurred in connection with any actual or threatened claim, demand, action, suit, proceeding (including any alternative dispute resolution proceeding) or investigation, whether civil, criminal, administrative or ~~investigative~~investigative to which such Indemnified Party is a party or is otherwise involved (including as a witness), ~~arising~~ and arises out of or ~~pertaining~~ pertains to the ~~fact~~ fact, in each case in whole or in part, that the ~~D&O~~ Indemnified Party is or was ~~a director, officer, fiduciary~~ an officer or ~~agent~~ director of ~~Parent~~ Lambda or any of the ~~Company~~Lambda Subsidiaries or other applicable Person or fiduciary of any Lambda Benefit Plan, with respect to matters existing or occurring at or prior to the Effective Time (including this Agreement, the Integrated Mergers and the other transactions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for For a period of six (6) years from the Effective ~~Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective~~ Time, ~~were officers or directors of Parent. The Organizational Documents of~~ Pi and the Surviving Corporation shall ~~contain, and Parent shall~~ cause the ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation to ~~so contain,~~ contain provisions no less favorable with respect to ~~indemnification~~exculpation, indemnification and reimbursement or advancement of expenses ~~and exculpation~~ of ~~present and former directors and~~ individuals who were directors, officers ~~as those~~ or employees prior to the Effective Time than are set ~~forth in the Organizational Documents of Parent~~ forth, as of the date of this Agreement, in Lambda’s certificate of incorporation and bylaws. (c) ~~From and after the Effective Time, (i)~~ Pi shall cause the Surviving Corporation to (or Pi shall ~~fulfill~~ on the Surviving Corporation’s behalf) obtain and ~~honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately~~ fully prepay prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “~~tail policy~~tail” ~~(the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’~~ insurance policies ~~for~~ with a claims ~~reporting or discovery~~ period of at least six (6) years from and after the Effective Time with recognized insurance companies with the same or better credit rating as Lambda’s current insurance companies for the Persons who, as of the date of this Agreement, are covered by Lambda’s directors’ and officers’ and fiduciary liability insurance (the “D&O Insurance”), with terms, conditions, retentions and levels of coverage at least as favorable as Lambda’s existing D&O Insurance with respect to ~~any claim related to any period of time at~~ matters existing or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective ~~Time~~Time (including in connection with this Agreement or the transactions or actions contemplated hereby), ~~whether asserted~~ with respect to Lambda’s D&O Insurance. Notwithstanding anything to the contrary in the foregoing, in no event shall Pi or ~~claimed prior to, at or after~~ the ~~Closing, now existing~~ Surviving Corporation be required to expend for such policies an annual premium amount in ~~favor~~ excess of three hundred percent (300%) of the ~~current~~ annual premiums currently paid by Lambda for such insurance; and provided further, that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation (or ~~former directors, officers~~ Pi on the Surviving Corporation’s behalf) shall obtain a policy with the greatest coverage available for a cost not exceeding such amount. Pi shall provide a reasonable opportunity to Lambda to comment on the terms of any endorsements or ~~employees, as the case may be, of Parent or the Company as provided~~ policies in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representativesconnection with such “tail” policy. (gd) ~~From~~ In the event of any claim, action, suit, proceeding or investigation in which any claims are made in respect of which such Indemnified Party would be entitled to indemnification pursuant to this Section 5.8(d), any Indemnified Party wishing to claim such indemnification shall promptly notify Pi thereof in writing, but the failure to so notify shall not relieve Pi or the Surviving Corporation of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices Pi or the Surviving Corporation. In the event of any such claim, action, suit, proceeding or investigation: (i) Pi or the Surviving Corporation shall have the right to assume the defense thereof (it being understood that by electing to assume the defense thereof, neither Pi nor the Surviving Corporation will be deemed to have waived any right to object to the Indemnified Party’s entitlement to indemnification hereunder with respect thereto or assumed any liability with respect thereto), except that if Pi or the Surviving Corporation elects not to assume such defense or legal counsel for the Indemnified Party advises that there are issues which raise conflicts of interest between Pi or the Surviving Corporation and ~~after~~ the ~~Effective Time~~Indemnified Party, the Indemnified Party may retain legal counsel satisfactory to Pi and to the provider of any insurance obtained in accordance with the foregoing Section 5.8(c), and Pi or the Surviving Corporation shall cooperate in the defense of any such matter as reasonably requested and pay all reasonable and documented fees, costs and expenses of such legal counsel for the Indemnified Party as statements therefor are received; provided, however, that (1) Pi and the Surviving Corporation shall be obligated pursuant to this Section 5.8(d) to pay for only one firm of legal counsel for all Indemnified Parties in any jurisdiction unless the use of one legal counsel for such Indemnified Parties would present such legal counsel with a conflict of interest (in which case the fewest number of legal counsels necessary to avoid conflicts of interest shall be used) and (2) the Indemnified Party shall have made an undertaking to repay all such fees, costs or expenses paid by Pi or the Surviving Corporation if and to the extent that it is ultimately determined by a court of competent jurisdiction in a final judgment that the Indemnified Party is not entitled to be indemnified by Pi or the Surviving Corporation; (ii) the Indemnified Parties shall cooperate in the defense of any such matter if Pi or the Surviving Corporation elects to assume such defense; (iii) Pi and the Surviving Corporation shall not be liable for any settlement effected without their prior written consent and the prior written consent of the provider of any insurance obtained in accordance with the foregoing Section 5.8(c), in each case if Pi or the ~~event Parent~~ Surviving Corporation elects not to assume such defense; and (iv) Pi and the Surviving Corporation shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnified action of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law. Notwithstanding anything herein to the contrary, neither Pi nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any claim, action, suit or other Legal Proceeding (and in which indemnification could be sought by Indemnified Parties hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such claim, action, suit or other Legal Proceeding or such Indemnified Party otherwise consents in writing. (e) If Pi or the Surviving Corporation or any of their respective successors or assigns (i) ~~consolidates~~ shall consolidate with or ~~merges~~ merge into any other ~~Person~~ corporation or Entity and shall not be the continuing or surviving corporation or ~~entity~~ Entity of such consolidation or ~~merger,~~ merger or (ii) ~~transfers~~ shall transfer all or substantially all of its properties and assets to any ~~Person~~individual, corporation or other Entity, then, and in each such case, proper ~~provision~~ provisions shall be made (whether by operation of law or otherwise) so that the successors and assigns of ~~Parent~~ Pi or the Surviving ~~Corporation, as the case may be,~~ Corporation shall ~~succeed to~~ assume all of the obligations set forth in this Section ~~5.7. Parent~~ 5.8. (f) The provisions of this Section 5.8 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective successors, heirs and legal representatives, shall be binding on all successors and assigns of Pi and the Surviving Corporation and shall not be amended in any manner that is adverse to the Indemnified Parties (including their successors, heirs and legal representatives) without the written consent of the Indemnified Party (including the successors, heirs and legal representatives) affected thereby. (g) The rights of the Indemnified Parties under this Section 5.8 shall be in addition to any rights such Indemnified Parties may have under the Lambda Organizational Documents or under any applicable Contracts or Laws in effect on the date of this Agreement, which rights shall, for the avoidance of doubt, survive the Effective Time, and Pi shall, and shall cause the Surviving Corporation to to, honor and perform under all such indemnification agreements entered into by Lambda or any of the ~~obligations~~ Lambda Subsidiaries in effect on the date of this Agreement and disclosed to Pi prior to the ~~Surviving Corporation~~ execution hereof, and any provisions under ~~this Section 5.7. The obligations set forth in this Section 5.7~~ any such applicable Contracts (including such indemnification agreements) shall not be ~~terminated~~amended, ~~amended~~ repealed or otherwise modified in any manner that would materially adversely ~~affects~~ affect the rights thereunder of any ~~D&O~~ such individual. (h) Pi and the Surviving Corporation shall indemnify any Indemnified Party against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request, relating to the enforcement of such Indemnified Party~~, or any person who is a beneficiary~~ ’s rights under ~~the policies referred to in~~ this Section ~~5.7 and their heirs and representatives~~5.8; provided, ~~without the prior written consent of~~ that such ~~affected D&O~~ Indemnified Party ~~or other person~~receiving any such advance executes a written undertaking to repay all such advances if it is ultimately determined that such Indemnified Party is not entitled to indemnification under Lambda’s certificate of incorporation and bylaws.

Appears in 2 contracts

Samples: Merger Agreement (Penn Virginia Corp), Merger Agreement (Lonestar Resources US Inc.)

Indemnification of Officers and Directors. (a) From and after the Business Combination Effective ~~Time through the sixth~~ Time, HoldCo shall (~~6th) anniversary of the date on which the Effective Time occurs, each of Parent~~ and ~~the Surviving Corporation, jointly~~ HoldCo shall cause Applied and ~~severally, shall~~ TEL to): indemnify and hold ~~harmless~~ harmless, and provide advancement of expenses to, all past and present directors, officers and employees of each ~~person who is now, or has been at any time prior~~ Applied Entity and TEL Entity (in all their capacities): (i) to the ~~date hereof~~same extent the foregoing are indemnified, held harmless or who becomes prior to the Effective Time, a director, officer, fiduciary or agent of Parent or the Company and their respective Subsidiaries, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be are entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement ~~shall not be amended, modified~~ by Applied or ~~repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at~~ TEL or ~~prior to the Effective Time, were officers~~ any other Applied Entity or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time TEL Entity; and (ii) ~~Parent shall fulfill and honor in all respects~~ without limitation of the ~~obligations of Parent to its D&O Indemnified Parties as of immediately prior~~ preceding clause “(i),” to the ~~Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties~~fullest extent permitted by applicable Legal Requirements, ~~with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time~~in each case, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Business Combination Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the Contemplated Transactions). (b) For a period of six years following the Business Combination Effective Time, ~~whether asserted~~ HoldCo shall cause to be maintained in effect the existing policy of Applied’s directors’ and officers’ liability insurance (or ~~claimed prior to,~~ a comparable replacement policy) (the “Applied D&O Policy”) covering claims arising from facts or events that occurred at or ~~after~~ prior to the ~~Closing~~Business Combination Effective Time to the extent that such claims are of the type covered by the Applied D&O Policy (including for acts or omissions occurring in connection with this Agreement and the consummation of the Contemplated Transactions to the extent that such acts or omissions are covered by the Applied D&O Policy) and covering each individual who is covered as of the Business Combination Effective Time by the Applied D&O Policy, ~~now existing~~ in ~~favor~~ any case on terms with respect to coverage and amounts that are no less favorable in the aggregate than those terms in effect on the date hereof; provided, however, that in no event shall HoldCo be required to expend in any one year an amount in excess of 200% of the current ~~or former directors~~annual premium paid by Applied for such insurance (such 200% amount, ~~officers or employees~~the “Maximum Annual Applied Premium”); provided further, however, that if the annual premiums of such insurance coverage exceed the Maximum Annual Applied Premium, HoldCo shall be obligated to obtain a policy with the greatest comparable coverage available for a cost not exceeding the Maximum Annual Applied Premium. Notwithstanding anything to the contrary in this Agreement, in lieu of its obligations under the first sentence of this Section 4.6(b), HoldCo may purchase a six-year “tail” prepaid policy on the Applied D&O Policy on terms with respect to coverage and amounts no less favorable in the aggregate than the Applied D&O Policy, and in the event that HoldCo shall purchase such a “tail” policy, HoldCo shall maintain such “tail” policy in full force and effect and continue to honor its obligations thereunder, in lieu of all other obligations of HoldCo under the first sentence of this Section 4.6(b) for so long as ~~the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement~~ such “tail” policy shall ~~survive the Merger and shall continue~~ be maintained in full force and effect. (c) For a period of six years following the Business Combination Effective Time, HoldCo shall cause to be maintained in effect the existing policy of TEL’s directors’ and officers’ liability insurance (or a comparable replacement policy) (the “TEL D&O Policy”) covering claims arising from facts or events that occurred at or prior to the Business Combination Effective Time to the extent that such claims are of the type covered by the TEL D&O Policy (including for acts or omissions occurring in connection with this Agreement and the consummation of the Contemplated Transactions to the extent that such acts or omissions are covered by the TEL D&O Policy) and covering each individual who is covered as of the Business Combination Effective Time by the TEL D&O Policy, in any case on terms with respect to coverage and amounts that are no less favorable in the aggregate than those terms in effect on the date hereof; provided, however, that in no event shall HoldCo be required to expend in any one year an amount in excess of 200% of the current annual premium paid by TEL for such insurance (such 200% amount, the “Maximum Annual TEL Premium”); provided further, however, that if the annual premiums of such insurance coverage exceed the Maximum Annual Applied Premium, HoldCo shall be obligated to obtain a policy with the greatest comparable coverage available for a cost not exceeding the Maximum Annual TEL Premium. ~~The provisions~~ Notwithstanding anything to the contrary in this Agreement, in lieu of its obligations under the first sentence of this Section ~~5.7~~ 4.6(c), HoldCo may purchase a six-year “tail” prepaid policy on the TEL D&O Policy on terms with respect to coverage and amounts no less favorable in the aggregate than the TEL D&O Policy, and in the event that HoldCo shall purchase such a “tail” policy, HoldCo shall maintain such “tail” policy in full force and effect and continue to honor its obligations thereunder, in lieu of all other obligations of HoldCo under the first sentence of this Section 4.6(c) for so long as such “tail” policy shall be maintained in full force and effect. (d) The obligations under this Section 4.6 shall not be terminated, amended or otherwise modified in such a manner as to adversely affect any individual who is a beneficiary under the Applied D&O Policy, TEL D&O Policy or the “tail” policies referred to in Section 4.6(b) and 4.6(c) (or any of such individual’s heirs and representatives) without the prior written consent of such affected beneficiary (and, after the death of such beneficiary, such beneficiary’s heirs and representatives). Each of the individuals who are beneficiaries under the Applied D&O Policy, TEL D&O Policy or the “tail” policy referred to in this Section 4.6 (and, after the death of any of the foregoing individuals, such individual’s heirs and representatives) are intended to be ~~in addition to~~ third party beneficiaries of this Section 4.6, with full rights of enforcement as if a party thereto. The rights of the ~~rights otherwise available to the current and former~~ applicable employees, officers and directors of ~~Parent~~ Applied and TEL (and other individuals who are beneficiaries under the ~~Company by Law~~Applied D&O Policy, ~~charter, statute, bylaw~~ TEL D&O Policy or ~~agreement,~~ the “tail” policies referred to in this Section 4.6) (and ~~shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties,~~ their heirs and ~~their~~ representatives) under this Section 4.6 shall be in addition to, and not in substitution for, any other rights that such individuals may have under the certificate or articles of incorporation, bylaws or other equivalent organizational documents, any and all indemnification agreements of or entered into by any Applied Entity, TEL Entity, HoldCo or any of its Subsidiaries, or applicable Legal Requirement (whether at law or in equity). (ge) ~~From and after the Effective Time, in~~ In the event ~~Parent~~ that HoldCo or ~~the Surviving Corporation~~ any of its Subsidiaries (or any of their respective successors or ~~assigns (i~~assigns) ~~consolidates~~ shall consolidate or merge with ~~or merges into~~ any other Person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger, ~~or (ii) transfers all or substantially all of its properties and assets to any Person, then, and~~ then in each case, to the extent necessary to protect the rights of each individual who is a beneficiary under the Applied D&O Policy, TEL D&O Policy or the “tail” policies referred to in this Section 4.6 (and any of such ~~case~~individual’s heirs and representatives), proper provision shall be made so that the continuing or surviving corporation or entity (or its successors ~~and assigns of Parent~~ or ~~the Surviving Corporation~~assigns, ~~as the case may be,~~ if applicable) shall ~~succeed to~~ assume the obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person4.6.

Appears in 2 contracts

Samples: Business Combination Agreement, Business Combination Agreement (Applied Materials Inc /De)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of ~~Parent~~ Meerkat and the Surviving ~~Corporation, jointly and severally,~~ Corporation shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Meerkat or the ~~Company and their respective Subsidiaries~~Company, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Meerkat or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under ~~applicable Law~~the DGCL for directors or officers of Delaware corporations. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of ~~Parent~~ Meerkat and the Surviving Corporation, jointly and severally, upon receipt by ~~Parent~~ Meerkat or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to ~~Parent~~Meerkat, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the ~~Organizational Documents~~ certificate of ~~Parent~~ incorporation and bylaws of Meerkat with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent~~ Meerkat that are presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~ Meerkat shall not be amended, modified or repealed for a period of six ~~(6)~~ years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of ~~Parent~~Meerkat, unless such modification is required by applicable Law. The ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation shall contain, and ~~Parent~~ Meerkat shall cause the ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~Meerkat. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) ~~Parent~~ Meerkat shall fulfill and honor in all respects the obligations of ~~Parent~~ Meerkat to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under ~~Parent~~Meerkat’s Organizational Documents and pursuant to any indemnification agreements between ~~Parent~~ Meerkat and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, ~~Parent~~ Meerkat shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to ~~Parent~~Meerkat. In addition, ~~Parent~~ Meerkat shall purchase, prior to the Effective Time, a ~~six (6)-year~~ six-year prepaid “D&O tail policy” ~~(the “D&O Tail Policy”)~~ for the non-cancellable extension of the directors’ and officers’ liability coverage of ~~Parent~~Meerkat’s existing directors’ and officers’ insurance policies and Meerkat’s existing fiduciary liability insurance policies, in each case, for a claims reporting or discovery period of at least six ~~(6)~~ years from and after the Effective Time with respect to any ~~claim~~ wrongful act related to any period of time at or prior to the Effective ~~Time. During~~ Time with terms, conditions, retentions and limits of liability that are no less favorable than the ~~term~~ coverage provided under Meerkat’s existing policies as of the ~~D&O Tail Policy~~date of this Agreement with respect to any actual or alleged error, ~~Parent shall not take~~ misstatement, misleading statement, act, omission, neglect, breach of duty or any ~~action following~~ matter claimed against a director or officer of Meerkat by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time (including in connection with this Agreement or the Contemplated Transactions or in connection with Meerkat’s initial public offering of shares of Meerkat Common Stock). Additionally, Meerkat shall allow the Company to ~~cause~~ add itself and its Subsidiaries as additional insureds solely in their capacity as Meerkat’s successors in interest on the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directorstail policy on Meerkat’s behalf. (e) From and after the Effective Time, ~~Parent~~ Meerkat shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section ~~5.7~~ 5.8 in connection with their ~~successful~~ enforcement of the rights provided to such persons in this Section ~~5.7~~5.8. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 5.8 are intended to be in addition to the rights otherwise available to the current and former officers and directors of ~~Parent~~ Meerkat and the Company by ~~Law~~law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) ~~From and after the Effective Time, in~~ In the event ~~Parent~~ Meerkat or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ Meerkat or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~5.8. ~~Parent~~ Meerkat shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section ~~5.7. The obligations set forth~~ 5.8. (h) Meerkat shall purchase, prior to the Effective Time, a six-year prepaid “Clinical Trial tail policy” for the non-cancellable extension of Meerkat’s existing U.S. clinical trial insurance policies and shall use commercially reasonable efforts to purchase a six-year prepaid “Clinical Trial tail policy” for the non-cancellable extension of Meerkat’s existing clinical trial insurance policies in jurisdictions other than the U.S. where Meerkat has conducted clinical trials and where such coverage is available by Law and on commercially reasonable terms, in each case, for a claims reporting or discovery period of at least six years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time with terms, conditions, retentions and limits of liability that are no less favorable than the coverage provided under Meerkat’s existing policies as of the date of this ~~Section 5.7~~ Agreement; provided, that Meerkat shall not be ~~terminated, amended or otherwise modified~~ required to pay an annual premium for any such extension of such policy in any ~~manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under~~ given jurisdiction in excess of 200% of the ~~policies referred~~ last annual premium paid for such policy prior to in the date of this ~~Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person~~Agreement.

Appears in 2 contracts

Samples: Merger Agreement (Synlogic, Inc.), Merger Agreement (Mirna Therapeutics, Inc.)

Indemnification of Officers and Directors. The Corporation shall: (a) ~~From~~ indemnify, to the ~~Effective Time through~~ fullest extent permitted by the ~~sixth (6th) anniversary~~ DGCL, any present or former director of the ~~date on which the Effective Time occurs, each of Parent and the Surviving~~ Corporation, ~~jointly~~ and ~~severally, shall~~ may indemnify ~~and hold harmless each person who is now,~~ any present or ~~has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director,~~ former officer, ~~fiduciary~~ employee or agent of ~~Parent~~ the Corporation selected by, and to the extent determined by, the Board of Directors for indemnification, the selection and determination of which may be evidenced by an indemnification agreement, who was or ~~the Company and their respective Subsidiaries~~is a party or is threatened to be made a party to any threatened, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, pending or completed action, ~~suit, proceeding~~ suit or ~~investigation~~proceeding, whether civil, criminal, administrative or ~~investigative, arising out~~ investigative (other than an action by or in the right of ~~or pertaining to~~ the Corporation) by reason of the fact that ~~the D&O Indemnified Party~~ such person is or was a director, officer, ~~fiduciary~~ employee or agent of ~~Parent~~ the Corporation, or is or was serving at the request of the ~~Company~~Corporation as a director, ~~whether asserted~~ officer, employee or ~~claimed prior to~~agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by 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 in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. 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, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful; and (b) indemnify any present or former director of the Corporation, and may indemnify any present or former officer, employee or agent of the Corporation selected by, and to the extent determined by, the Board of Directors for indemnification, the selection and determination of which may be evidenced by an indemnification agreement, who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person 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 ~~after~~ agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the ~~Effective Time~~defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in ~~each~~ which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper; and (c) indemnify any present or former director of the Corporation, and may indemnify any present or former officer, employee or agent of the Corporation selected by, and to the ~~fullest~~ extent ~~permitted under applicable Law. Each D&O Indemnified Party will~~ determined by, the Board of Directors for indemnification, the selection and determination of which may be ~~entitled to advancement of~~ evidenced by an indemnification agreement, against expenses (including attorneys’ fees) actually and reasonably incurred ~~in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt~~ by ~~Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any~~ such person ~~to whom expenses are advanced provides an undertaking to Parent~~in connection therewith, to the extent ~~then required~~ that a present or former director, officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section (a) or (b) of this Article NINTH, or in defense of any claim, issue or matter therein; and (d) make any indemnification under Section (a) or (b) of this Article NINTH (unless ordered by a court) only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent of the Corporation is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section (a) or (b) of this Article NINTH. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of directors who were not parties to such action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors designated by majority vote of such directors, even if less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the ~~DGCL~~stockholders of the Corporation; and (e) pay expenses (including attorneys’ fees) incurred by a present or former director, or by any present or former officer, employee or agent of the Corporation selected for indemnification by the Board of Directors in accordance with Section (a) or (b) of this Article NINTH, in defending a civil or criminal action, suit or proceeding in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such ~~advances~~ amount if it is shall ultimately be determined that such ~~person~~ director or officer is not entitled to indemnification. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred indemnified by the ~~persons referred to~~ Corporation as authorized in ~~this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7.~~Article NINTH herein; and (f) ~~All rights to exculpation,~~ not deem the indemnification and advancement of expenses ~~for acts~~ provided by, or ~~omissions occurring~~ granted pursuant to, the other subsections of this Article NINTH exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the By-laws, any agreement, any vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office or position; and (g) have the right, power and authority to 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 ~~prior~~ agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article NINTH and the DGCL; and (h) continue the indemnification and advancement of expenses provided by, or granted pursuant to, Article NINTH herein, unless otherwise provided when authorized or ratified, as to a person who has ceased to be a director, officer, employee or agent of the Corporation, and the indemnification and advancement of expenses provided by, or granted pursuant to this Article NINTH shall inure to the ~~Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor~~ benefit of the ~~current or former directors~~heirs, ~~officers or employees, as the case may be,~~ executors and administrators of ~~Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger~~ such a person; and ~~shall continue in full force and effect.~~ The provisions of this ~~Section 5.7 are intended to~~ Article NINTH shall be treated as a contract between the Corporation and each director, or appropriately designated officer, employee or agent, who serves in ~~addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement~~such capacity at any time while this Article NINTH is in effect, and any repeal or modification of this Article NINTH shall ~~operate for the benefit of, and shall be enforceable by, each~~ not affect any rights or obligations then existing with respect to any state of ~~the D&O Indemnified Parties, their heirs and their representatives. (g) From and after the Effective Time, in the event Parent~~ facts then or ~~the Surviving Corporation~~ theretofore existing or any action, suit or proceeding theretofore or thereafter brought or threatened based in whole or in part upon such state of ~~their respective successors or assigns (i) consolidates with or merges into any other Person and~~ facts; provided, however, that the provisions of this Article NINTH shall not be treated as a contract between the ~~continuing~~ Corporation and any directors, officers, employees or agents of any other corporation (the “Second Corporation”) that shall merge into or consolidate with the Corporation where the Corporation shall be the surviving ~~corporation~~ or ~~entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then~~resulting corporation, and any such directors, officers, employees or agents of the Second Corporation, in ~~each such case~~their capacity as such, ~~proper provision~~ shall be ~~made so that~~ indemnified only at the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all discretion of the ~~obligations~~ Board of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other personDirectors.

Appears in 2 contracts

Samples: Purchase Agreement (Power Solutions International, Inc.), Purchase Agreement (Power Solutions International, Inc.)

Indemnification of Officers and Directors. (a) ~~From~~ Until such time as the ~~Effective Time through~~ applicable statute of limitations shall have expired, Parent shall cause the ~~sixth (6th) anniversary~~ Surviving Corporation to provide with respect to each present or former director and officer of the ~~date on~~ Company or any Company Subsidiary (the "Indemnified Parties"), the indemnification rights (including any rights to advancement of expenses) which such Indemnified Parties had or was made available to such Indemnified Parties, from the ~~Effective Time occurs~~Company or any Company Subsidiary, ~~each of Parent and the Surviving Corporation, jointly and severally, shall indemnify and hold harmless each person who is now, or has been at any time~~ immediately prior to the Merger, whether available under the CBCA, the corporate laws governing any Company Subsidiary, the Certificate of Incorporation or the By-Laws of the Company or the comparable organizational documents of any Company Subsidiary or by any contract, agreement, arrangement or course of dealing set forth on Schedule 5.13 to the Company Disclosure Letter, in each case as in effect on the date hereof. (b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 5.13, ~~or who becomes prior to the Effective Time, a director, officer, fiduciary or agent~~ upon learning of Parent or the Company and their respective Subsidiaries, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any such claim, action, ~~suit,~~ suit proceeding or investigation, ~~whether civil, criminal, administrative or investigative, arising out of or pertaining to~~ shall promptly notify Parent thereof. In the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense event of any such claim, action, suit, proceeding or investigation ~~from each of Parent~~ (whether arising before or after the Effective Time), (i) subject to subsections (i) and ~~the Surviving Corporation~~(ii) below, ~~jointly and severally, upon receipt by~~ Parent or the Surviving Corporation ~~from~~ shall have the ~~D&O Indemnified Party of a request therefor; provided that any such person~~ right to ~~whom expenses are advanced provides an undertaking to Parent, to~~ assume the ~~extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the Organizational Documents of~~ defense thereof and neither Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of nor the Surviving Corporation shall ~~contain~~be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, ~~and~~ unless the defenses available to such Indemnified Party are different from or in addition to any defenses available to Parent ~~shall cause~~ or the ~~Organizational Documents of~~ Surviving Corporation, which in such case, Parent or the Surviving Corporation shall pay the costs and expenses of one counsel and up to ~~so contain~~one local counsel for such Indemnified Party, ~~provisions no less favorable~~ (ii) subject to the last clause of subsection (i) above, the Indemnified Party shall have the right to maintain a joint defense with ~~respect to indemnification~~the Indemnified Party paying its own costs and expenses, ~~advancement of expenses and exculpation of present and former directors and officers as those set forth~~ (iii) the Indemnified Parties will cooperate in the ~~Organizational Documents~~ defense of any such matter and (iv) neither Parent as nor the Surviving Corporation shall be liable for any settlement effected without its prior written consent; and provided, further, that neither Parent nor the Surviving Corporation shall have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the ~~date~~ indemnification of ~~this Agreement~~such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) From and after the Effective Time, in the event ~~Parent or~~ that the Surviving Corporation or any of ~~their respective~~ its successors or assigns (i) consolidates with or merges into any other Person and ~~shall~~ is not be the continuing or surviving corporation or entity of such consolidation or ~~merger,~~ merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision ~~shall~~ will be made so that the successors and assigns of ~~Parent or~~ the Surviving ~~Corporation, as the case may be, shall succeed to~~ Corporation assume the obligations set forth in this Section ~~5.7.~~ 5.13. (d) Immediately following the Effective Time, Parent shall cause the Surviving Corporation to ~~perform all~~ (i) maintain the Company's current policies of directors' and officers' liability insurance for a period of six years after the Effective Time or (ii) maintain a run-off or tail policy or endorsement with respect to covering claims asserted within six years after the Effective Time arising from facts or events occurring at or before the Effective Time; provided, however, that in no event shall Parent be required to expend pursuant to this Section 5.13(d) on an annual basis more than an amount equal to 150% of the ~~obligations~~ current annual premiums paid by the Company for such insurance and, in the event the cost of such coverage shall exceed that amount, Parent shall purchase as much coverage as possible for such amount. (e) This Section 5.13 shall survive the Closing and is intended to benefit the Company, the Surviving Corporation ~~under~~ and each of the Indemnified Parties and his or her heirs and representatives (each of whom shall be entitled to enforce this Section ~~5.7. The obligations set forth in this Section 5.7~~ 5.13 against Parent or the Surviving Corporation to the extent specified herein) and shall ~~not~~ be ~~terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under~~ binding on all successors and assigns of Parent and the ~~policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person~~Surviving Corporation.

Appears in 2 contracts

Samples: Merger Agreement (American International Group Inc), Merger Agreement (HSB Group Inc)

Indemnification of Officers and Directors. (a) From the First Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the First Effective Time occurs, each of Parent and the Surviving ~~Corporation, jointly and severally,~~ Entity shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the First Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of Parent or the Company ~~and~~ or any of their respective Subsidiaries, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of Parent or of the Company, ~~whether~~ or any Subsidiary thereof, asserted or claimed prior ~~to, at or after~~ to the First Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving ~~Corporation~~Entity, jointly and severally, upon receipt by Parent or the Surviving ~~Corporation~~ Entity from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the ~~DGCL~~DGCL or DLLCA, as applicable, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the ~~Organizational Documents~~ certificate of incorporation and bylaws of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are presently set forth in the ~~Organizational Documents~~ certificate of incorporation and bylaws of Parent ~~as of the date of this Agreement~~ shall not be amended, modified or repealed for a period of six ~~(6)~~ years from the First Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the First Effective Time, were officers or directors of Parent, unless such modification is required by applicable Law. The ~~Organizational Documents~~ certificate of formation and limited liability company agreement of the Surviving ~~Corporation~~ Entity shall contain, and Parent shall cause the ~~Organizational Documents~~ certificate of formation and limited liability company agreement of the Surviving ~~Corporation~~ Entity to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~Parent. (c) From and after the First Effective Time, (i) the Surviving ~~Corporation~~ Entity shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the First Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the First Effective Time. (d) From and after the First Effective Time, Parent shall continue to maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the First Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section ~~5.7~~ 4.5 in connection with their successful enforcement of the rights provided to such persons in this Section ~~5.7~~4.5. (fe) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 4.5 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (gf) ~~From and after the Effective Time, in~~ In the event Parent or the Surviving ~~Corporation~~ Entity or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving ~~Corporation~~Entity, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~4.5. Parent shall cause the Surviving ~~Corporation~~ Entity to perform all of the obligations of the Surviving ~~Corporation~~ Entity under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person4.5.

Appears in 2 contracts

Samples: Merger Agreement (Idera Pharmaceuticals, Inc.), Merger Agreement (Miragen Therapeutics, Inc.)

Appears in 2 contracts

Samples: Merger Agreement (Zilog Inc), Merger Agreement (Ixys Corp /De/)

Indemnification of Officers and Directors. (a) ~~From~~ For a period of six (6) years from the Effective Time, Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time ~~through~~ (whether asserted or claimed prior to, at or after the Effective Time) now existing in favor of the current or former directors or officers of the Company and any indemnification or other similar agreements of the Company, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms, and Parent shall cause the Company to perform its obligations thereunder. Without limiting the foregoing, during the period commencing at the Effective Time and ending on the sixth ~~(6th)~~ anniversary of the ~~date on which the~~ Effective ~~Time occurs~~Time, ~~each of~~ Parent ~~and~~ shall cause the Surviving ~~Corporation~~Corporation and its Subsidiary, ~~jointly and severally~~as applicable, ~~shall~~ to, indemnify and hold harmless each ~~person~~ individual who is ~~now, or has been at any time prior to~~ as of the date ~~hereof~~of this Agreement, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent or~~ the Company ~~and their respective Subsidiaries~~or who is as of the date of this Agreement, ~~respectively~~ or who thereafter commences prior to the Effective Time, serving at the request of the Company as a director or officer of another Person (the “~~D&O~~ Indemnified ~~Parties~~Persons”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable and documented fees, costs and expenses, including reasonable and documented attorneys’ fees and disbursements, incurred in connection with any claim, action, ~~suit, proceeding~~ suit or ~~investigation~~proceeding, whether civil, criminal, administrative or ~~investigative~~investigative (including with respect to matters existing or occurring at or prior to the Effective Time, including this Agreement and the transactions and actions contemplated hereby), arising out of or pertaining to the fact that the ~~D&O~~ Indemnified ~~Party~~ Person is or was a ~~director, officer, fiduciary~~ director or ~~agent of Parent or~~ officer of the ~~Company~~Company or is or was serving at the request of the Company as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under applicable ~~Law~~Legal Requirements. ~~Each D&O Indemnified Party will be entitled to advancement of expenses incurred in~~ In the ~~defense~~ event of any such claim, action, ~~suit~~suit or proceeding, ~~proceeding or investigation~~ (x) each Indemnified Person will be entitled to the advancement of expenses incurred in defense thereof from ~~each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or~~ the Surviving Corporation ~~from~~ or its Subsidiary, as applicable, in accordance with the ~~D&O~~ organizational documents and any indemnification or other similar agreements of the Surviving Corporation or its Subsidiary, as applicable, as in effect on the date of this Agreement; provided, that the Indemnified ~~Party of a request therefor; provided that any such person~~ Person to whom expenses are advanced provides an undertaking to ~~Parent, to the extent then required by the DGCL, to~~ repay such ~~advances~~ amount if it is shall ultimately be determined by final adjudication that such ~~person~~ Indemnified Person is not entitled to ~~indemnification~~be indemnified pursuant to the preceding sentence and (y) the Surviving Corporation and its Subsidiary shall reasonably cooperate in the defense of any such matter. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for For a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective ~~Time~~ Time, Parent and the Surviving Corporation shall either cause to be maintained in effect the current policies of directors’ and officers’, employment practices and fiduciary liability insurance maintained by or for the benefit of the Company or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’, employment practices and fiduciary liability insurance coverage currently maintained by or for the benefit of the Company, in either case, of not less than the existing coverage and having other terms not less favorable to the insured persons than the directors’ and officers’, employment practices and fiduciary liability insurance coverage currently maintained by or for the benefit of the Company with respect to ~~any claim related to any period of time~~ claims arising from facts or events that occurred at or before the Effective Time (with insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’, employment practices and fiduciary liability insurance), except that in no event shall Parent or the Surviving Corporation be required to pay with respect to such insurance policies more than 250% of the aggregate annual premium most recently paid by the Company prior to the ~~Effective Time. During~~ date of this Agreement (the ~~term~~ “Maximum Amount”, which Maximum Amount is set forth on Section 6.5(b) of the ~~D&O Tail Policy~~Company Disclosure Schedule), ~~Parent~~ and if the Surviving Corporation is unable to obtain the insurance required by this Section 6.5(b) it shall obtain as much comparable insurance as possible for the years within such six (6)-year period for a premium equal to the Maximum Amount. In lieu of such insurance, prior to the Closing Date the Company may, at its option, purchase a “tail” directors’ and officers’, employment practices and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’, employment practices and fiduciary liability insurance coverage currently maintained by or for the benefit of the Company, such tail to provide coverage in an amount not ~~take any action following~~ less than the ~~Effective Time~~ existing coverage and to ~~cause~~ have other terms not less favorable to the ~~D&O Tail Policy~~ insured persons than the directors’ and officers’, employment practices and fiduciary liability insurance coverage currently maintained by or for the benefit of the Company with respect to ~~be cancelled~~ claims arising from facts or ~~any provision therein to be amended~~ events that occurred at or ~~waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after~~ before the Effective Time~~, Parent~~ ; provided that in no event shall ~~pay all expenses, including reasonable attorneys’ fees, that are incurred by~~ the ~~persons referred to in this Section 5.7 in connection with their successful enforcement~~ cost of any such tail policy exceed the ~~rights provided to~~ Maximum Amount. Surviving Corporation shall maintain such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue policies in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and ~~shall operate for~~ continue to honor the ~~benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives~~obligations thereunder. (gc) ~~From and after the Effective Time, in~~ In the event ~~Parent or~~ that the ~~Surviving Corporation~~ Company or any of ~~their respective~~ its successors or assigns (i) consolidates with or merges into any other Person and ~~shall~~ is not be the continuing or surviving corporation or ~~entity~~ Entity of such consolidation or ~~merger,~~ merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, the Company shall cause proper provision ~~shall~~ to be made so that the successors and assigns of ~~Parent or~~ the ~~Surviving Corporation, as the case may be, shall succeed to~~ Company assume the obligations set forth in this Section ~~5.7. Parent shall cause the Surviving Corporation to perform all~~ 6.5. (d) The provisions of ~~the obligations of the Surviving Corporation under~~ this Section ~~5.7. The obligations set forth in this Section 5.7~~ 6.5 (i) shall ~~not~~ survive the Offer Acceptance Time and the Effective Time and (ii) are intended to be ~~terminated~~for the benefit of, ~~amended~~ and will be enforceable by, each indemnified or ~~otherwise modified in any manner that adversely affects any D&O~~ insured party (including the Indemnified ~~Party~~Persons), his or ~~any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs~~ her heirs, successors, assigns and representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification, advancement of expenses, exculpation or contribution that any such Person may have by contract or otherwise. Unless required by applicable Legal Requirement, this Section 6.5 may not be amended, altered or repealed after the Offer Acceptance Time in such a manner as to adversely affect the rights of any Indemnified Person or any of their successors, assigns or heirs without the prior written consent of ~~such~~ the affected ~~D&O~~ Indemnified ~~Party or other person~~Person.

Appears in 2 contracts

Samples: Merger Agreement (Cti Biopharma Corp), Merger Agreement (Cti Biopharma Corp)

Indemnification of Officers and Directors. (a) From the Effective ~~Time through the sixth (6th) anniversary of the date on which the Effective Time occurs~~Time, each of Parent and the Surviving ~~Corporation~~Corporation shall, jointly and severally, ~~shall~~ indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent or~~ the Company ~~and their respective Subsidiaries, respectively~~ or any of its Subsidiaries (the “~~D&O~~ Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the ~~D&O~~ Indemnified Party is or was ~~a director, officer, fiduciary~~ an officer or ~~agent of Parent or~~ director of the ~~Company~~Company or any of its Subsidiaries, whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under ~~applicable Law~~the DGCL for officers and directors of Delaware corporations. Each ~~D&O~~ Indemnified Party will be ~~entitled~~ entitled, subject to applicable law, to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving ~~Corporation, jointly and severally, upon~~ Corporation within ten (10) Business Days of receipt by Parent or the Surviving Corporation from the ~~D&O~~ Indemnified Party of a request therefor; provided that any ~~such~~ person to whom expenses are advanced provides an a written personal undertaking ~~to Parent, to the extent then required by the DGCL,~~ to repay such advances if it is ~~ultimately~~ determined that such person is not entitled to indemnification. In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that each Indemnified Party is entitled to indemnification and the other benefits of this Section 6.3. (b) The ~~provisions~~ Certificate of Incorporation and By-laws, or corresponding governing documents, of the ~~Organizational Documents~~ Surviving Corporation and its Subsidiaries shall contain, and Parent shall cause the Certificate of ~~Parent~~ Incorporation and By-laws, or corresponding governing documents, of the Surviving Corporation and its Subsidiaries to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent that~~ the Company and its Subsidiaries than are presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and by-laws of the ~~date of this Agreement~~ Company and its Subsidiaries, as applicable, which provisions shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of ~~Parent. The Organizational Documents~~ the Company or any of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreementits Subsidiaries. (c) ~~From and after~~ Prior to the Effective Time, the Company shall (in consultation with Parent) purchase, as of the Effective Time, tail insurance, at commercially reasonable rates and containing a customary straddle claim provision, for (i) the ~~Surviving Corporation shall fulfill~~ directors’ and ~~honor in all respects the obligations~~ officers’ liability coverage of ~~the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under~~ the Company’s ~~Organizational Documents~~ existing directors’ and ~~pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties~~officers’ liability insurance policy covering acts, ~~with respect to claims arising out of matters~~ errors or omissions occurring at or prior to the Effective Time and (ii) ~~Parent shall fulfill and honor in all respects~~ the ~~obligations~~ Company’s existing fiduciary liability insurance policies (collectively, “D&O Insurance”), for a claims reporting or discovery period of ~~Parent to its D&O Indemnified Parties as of immediately prior to~~ six (6) years after the ~~Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties~~Effective Time (the “Tail Period”), with respect to ~~claims arising out~~ those Persons who are covered by the D&O Insurance as of ~~matters~~ the Effective Time, with terms and conditions, retentions and limits of liability which are substantially the same as the terms and conditions, retentions and limits of liability under the existing D&O Insurance with respect to acts, errors or omissions occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that ~~are~~ may be incurred by the ~~persons referred to in this Section 5.7~~ Indemnified Parties in connection with their ~~successful~~ enforcement of ~~the~~ their rights provided ~~to such persons~~ in this Section ~~5.7~~6.3. (fe) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 6.3 are intended to be in addition to the rights otherwise available to the ~~current and former officers and directors~~ Indemnified Parties by law, certificate of ~~Parent and the Company by Law, charter~~incorporation, statute, ~~bylaw~~ by-law or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the ~~D&O~~ Indemnified Parties, their heirs and their representatives. Notwithstanding any other rights an Indemnified Party may have, the obligations of Parent, the Surviving Corporation and its Subsidiaries specified herein are to be the primary source of indemnification and advancement of expenses for such Indemnified Party. (gf) ~~From and after the Effective Time, in~~ In the event ~~Parent~~ Parent, the Surviving Corporation or a Subsidiary of the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any ~~Person~~person, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ Parent, the Surviving Corporation or the Subsidiary of the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7.~~ 6.3. (g) Parent shall cause the Surviving Corporation and its Subsidiaries to perform all of the obligations of the Surviving Corporation or the Subsidiary, as applicable, under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person6.3.

Appears in 2 contracts

Samples: Merger Agreement (Altair Engineering Inc.), Merger Agreement (Datawatch Corp)

Indemnification of Officers and Directors. (a) ~~From~~ The bylaws of the Surviving Corporation shall provide for rights to indemnification, advancement of expenses and exculpation in favor of those Persons who are directors, officers and employees of the Company or any of its Subsidiaries as of the Agreement Date or have been directors, officers and employees of the Company or any of its Subsidiaries in the past (the “Indemnified Persons”) for their acts and omissions occurring prior to the Effective Time ~~through~~ (such provisions of the bylaws of the Surviving Corporation, the “Indemnification Provisions”). The Indemnification Provisions shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of such Indemnified Persons, and shall be observed by Parent, the Surviving Corporation and their successors and assigns to the fullest extent available under Delaware Law for a period of six (6) years from the Effective Time, and any claim made pursuant to such rights within such six (6)-year period shall continue to be subject to this Section 7.4(a) and the rights provided under this Section 7.4(a) until disposition of such claim. (b) From and after the Effective Time until the sixth (6th) anniversary of the date on which the Effective Time occurs, ~~each of~~ Parent and the Surviving ~~Corporation~~Corporation (together with their successors and assigns, jointly and severally, shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, fiduciary or agent of Parent or the Company and their respective Subsidiaries, respectively (the “~~D&O Indemnified~~ Indemnifying Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case) shall, to the fullest extent permitted under applicable ~~Law. Each D&O~~ Laws, indemnify and hold harmless each Indemnified ~~Party will be entitled to advancement of expenses incurred~~ Person in ~~the defense of any such claim, action, suit, proceeding~~ his or ~~investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent~~ her capacity as an officer or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations director of the Company to or any of its ~~D&O~~ Subsidiaries against all losses, claims, damages, liabilities, fees, expenses, judgments or fines incurred by such Indemnified ~~Parties~~ Person as an officer or director of ~~immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between~~ the Company ~~and such D&O Indemnified Parties,~~ or any of its Subsidiaries in connection with ~~respect to claims~~ any pending or threatened Legal Proceeding based on or arising out of, in whole or in part, the fact that such Indemnified Person is or was a director or officer of ~~matters occurring~~ the Company or any of its Subsidiaries at or prior to the Effective Time and ~~(ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant~~ pertaining to any ~~indemnification provisions under Parent’s Organizational Documents~~ and ~~pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties~~all matters pending, ~~with respect to claims arising out of matters occurring at~~ existing or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the ~~Closing~~Effective Time, ~~now existing~~ including any such matter arising under any claim with respect to the Transactions. Without limiting the foregoing, from the Effective Time until the sixth (6th) anniversary of the date on which the Effective Time occurs, the Indemnifying Parties shall also, to the fullest extent permitted under applicable Laws, advance reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Indemnified Persons in connection with matters for which such Indemnified Persons are eligible to be indemnified pursuant to this Section 7.4(b), subject to the execution by such Indemnified Persons of appropriate undertakings in favor of the Indemnifying Parties to repay such advanced costs and expenses if it is ultimately determined in a final and non-appealable judgment of a court of competent jurisdiction that such Indemnified Person is not entitled to be indemnified under this Section 7.4(b). (c) From the Effective Time until the sixth (6th) anniversary of the Effective Time, the Surviving Corporation shall maintain, and Parent shall cause the Surviving Corporation to maintain, in effect, the current policy of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries as of the Agreement Date for the benefit of the Indemnified Persons who are currently covered by such existing policy with respect to their acts and omissions occurring prior to the Effective Time in their capacities as directors and officers of the Company or ~~former directors~~any of its Subsidiaries, ~~officers~~ on terms with respect to coverage, deductibles and amounts no less favorable than the existing policy (or ~~employees~~at or prior to the Effective Time, ~~as the case may be, of~~ Parent or the Company may (through a nationally recognized insurance broker approved by Parent (such approval not to be unreasonably withheld, conditioned or delayed)) purchase a six (6)-year “tail” policy for the existing policy effective as ~~provided~~ of the Effective Time) and if such “tail policy” has been obtained, it shall be deemed to satisfy all obligations to obtain or maintain insurance pursuant to this Section 7.4(c); provided, however, that in ~~their respective Organizational Documents or~~ no event shall the Surviving Corporation be required to expend in any ~~agreement shall survive~~ one (1) year an amount in excess of 300% of the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and annual premium currently payable by the Company ~~by Law~~and its Subsidiaries with respect to such current policy, ~~charter~~it being understood that if the annual premiums payable for such insurance coverage exceeds such amount, ~~statute, bylaw or agreement, and shall operate for the benefit of, and~~ Parent shall be ~~enforceable by, each of~~ obligated to cause the ~~D&O Indemnified Parties, their heirs and their representatives~~Surviving Corporation to obtain a policy with the greatest coverage available for a cost equal to such amount. (gd) ~~From and after the Effective Time, in~~ In the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving ~~corporation or entity~~ Entity of such consolidation or ~~merger,~~ merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, ~~proper provision~~ Parent shall ~~be made so~~ ensure that the successors and assigns of Parent or the Surviving Corporation, as the case may be, or at Parent’s option, Parent, shall ~~succeed to~~ assume the obligations set forth in this Section ~~5.7. Parent~~ 7.4. (e) The provisions of this Section 7.4 shall ~~cause~~ survive the ~~Surviving Corporation~~ acceptance of Shares for payment pursuant to ~~perform all~~ the Offer and the consummation of the ~~obligations~~ Merger and are (i) intended to be for the benefit of, and shall be enforceable by, each of the ~~Surviving Corporation under this~~ Indemnified Persons and their successors, assigns and heirs and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. This Section ~~5.7. The obligations set forth in this Section 5.7 shall~~ 7.4 may not be ~~terminated~~amended, ~~amended~~ altered or ~~otherwise modified~~ repealed after the Offer Acceptance Time in such a manner as to adversely affect the rights of any ~~manner that adversely affects any D&O~~ Indemnified ~~Party,~~ Person or any ~~person who is a beneficiary under the policies referred to in this Section 5.7 and~~ of their successors, assigns or heirs ~~and representatives,~~ without the prior written consent of ~~such~~ the affected ~~D&O~~ Indemnified ~~Party or other person~~Person.

Appears in 2 contracts

Samples: Merger Agreement (Adamas Pharmaceuticals Inc), Merger Agreement (Supernus Pharmaceuticals, Inc.)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of Parent and the Surviving ~~Corporation, jointly and severally,~~ Corporation shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, fiduciary or agent of Parent or the ~~Company and their respective Subsidiaries~~Company, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the ~~Organizational Documents~~ certificate of incorporation and bylaws of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are presently set forth in the ~~Organizational Documents~~ certificate of incorporation and bylaws of Parent ~~as of the date of this Agreement~~ shall not be amended, modified or repealed for a period of six ~~(6)~~ years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation shall contain, and Parent shall cause the ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~Parent. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a ~~six (6)-year~~ six-year prepaid “tail policy” (the ~~“D&O Tail Policy”~~cost of which shall be a Company Transaction Expense) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six ~~(6)~~ years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section ~~5.7~~ 5.8 in connection with their successful enforcement of the rights provided to such persons in this Section ~~5.7~~5.8. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 5.8 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) ~~From and after the Effective Time, in~~ In the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~5.8. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person5.8.

Appears in 2 contracts

Samples: Agreement and Plan of Merger and Reorganization, Merger Agreement (Aviragen Therapeutics, Inc.)

Indemnification of Officers and Directors. (a) From and after the Effective ~~Time through the sixth (6th) anniversary of the date on which the Effective Time occurs~~Time, each of ~~Parent~~ Visor and the Surviving ~~Corporation~~Company agrees that it shall, ~~jointly and severally~~as applicable, ~~shall indemnify~~ indemnify, defend and hold ~~harmless each person who is now~~harmless, ~~or has been at any time prior to the date hereof, or who becomes~~ in such scope and amount as was provided by Union immediately prior to the Effective Time, a each present and former director, ~~officer~~officer and employee of Union, each present and former director, member of the board of directors, officer and employee of any of Union’s Subsidiaries and any fiduciary ~~or agent~~ under any Union Plan (in each case, when acting in such capacity), determined as of ~~Parent or~~ the ~~Company and their respective Subsidiaries, respectively~~ Effective Time (the “~~D&O~~ Indemnified Parties”), against ~~all claims, losses, liabilities, damages, judgments, fines and reasonable fees,~~ any costs ~~and expenses,~~ or expenses (including attorneys’ fees and disbursements), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the ~~D&O~~ Indemnified Party is or was a director, officer, employee or fiduciary of Union or ~~agent of Parent or~~ a member of the ~~Company~~board of directors, officer, employee or fiduciary of any of its Subsidiaries or a fiduciary under any Union Plan, whether asserted or claimed prior to, at or after the Effective ~~Time,~~ Time (including with respect to any acts or omissions in ~~each case~~connection with this Agreement and the transactions and actions contemplated by this Agreement), to the ~~fullest~~ extent ~~permitted~~ and in accordance with the procedures that Union would have under applicable ~~Law. Each D&O Indemnified Party will be entitled~~ Law and the applicable Organizational Documents (and, to ~~advancement~~ the extent not contrary to applicable Law or its Organizational Documents, any indemnification agreement) in effect on the date of this Agreement to indemnify such Person, and Visor or the Surviving Company shall also promptly advance expenses as incurred in ~~the defense~~ advance of any final disposition of any such claim, action, suit, proceeding or investigation ~~from each~~ to the extent and in accordance with the procedures that Union or its applicable Subsidiary would have under applicable Law or its Organizational Documents (and, to the extent not contrary to applicable Law or its Organizational Documents, any indemnification agreement) in effect on the date of ~~Parent and~~ this Agreement; provided, however, that the ~~Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person~~ Person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, if and only to the extent ~~then~~ required by applicable Law or the ~~DGCL~~applicable Organizational Documents (as in effect on the date hereof), to repay such advances if it is ultimately determined that such ~~person~~ Person is not entitled to indemnification~~. (b) The provisions of the Organizational Documents of Parent~~ , and provided, further, that any determination required to be made with respect to ~~indemnification~~whether a director’s, ~~advancement of expenses and exculpation of present and former directors and officers of Parent that are~~ officer’s, employee’s or fiduciary’s conduct complied with the standards set forth under applicable Law and the applicable Organizational Documents (or the applicable organizational documents of a Subsidiary or Union Plan) shall be made by independent counsel selected by the Indemnified Party. In the event of any claim, action, suit, proceeding or investigation, (i) neither Visor nor the Surviving Company shall settle, compromise or consent to the entry of any judgment in any claim, action, suit, proceeding or investigation (and in which indemnification could be sought by Indemnified Parties hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such claim, action, suit, proceeding or investigation or such Indemnified Party otherwise consents in writing, and (ii) the Surviving Company shall cooperate in the ~~Organizational Documents~~ defense of ~~Parent as of~~ such matter. The parties agree that this Section 6.08(a) does not purport to limit any rights that any Indemnified Party may have under any employment agreement, indemnification agreement, or Union Plan in effect on the date of this Agreement and disclosed to either party prior to the execution hereof, which provisions shall not be amended, repealed or otherwise modified ~~or repealed for a period of six (6) years from the Effective Time~~ in a any manner that would materially adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreementany such individual. (cb) From and after the Effective Time, ~~(i)~~ Visor shall, and shall cause the Surviving ~~Corporation shall fulfill and~~ Company to, honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses ~~for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing,~~ now existing in favor of the current or former directors, officers or employees, as the case may be, of ~~Parent~~ Union or ~~the Company~~ its Subsidiaries as provided in their respective Organizational Documents or in any agreement to which Union or any of its Subsidiaries is a party, which rights shall survive the Merger and shall continue in full force and ~~effect. The provisions of this Section 5.7 are intended to be in addition~~ effect to the extent permitted by Law. No such provision in any Organizational Document or other agreement of the Surviving Company or any Subsidiary of Union shall be amended, modified or repealed in any manner that would adversely affect the rights ~~otherwise available~~ or protections thereunder to any such individual with respect to acts or omissions occurring at or prior to the ~~current~~ Effective Time. In addition, from and ~~former~~ after the Effective Time, all directors, officers and ~~directors of Parent~~ employees and ~~the Company by Law~~all fiduciaries currently indemnified under a Union Plan who become directors, ~~charter~~officers, ~~statute, bylaw~~ employees or ~~agreement, and shall operate for the benefit of, and~~ fiduciaries under a Visor Plan shall be ~~enforceable by~~entitled to the indemnity, ~~each of~~ advancement and exculpation rights and protections afforded to directors, officers and employees or fiduciaries under the ~~D&O Indemnified Parties, their heirs and their representatives. (g)~~ applicable Visor Plan. From and after the Effective Time, Visor shall assume, be jointly and severally liable for, and honor, guaranty and stand surety for, and shall cause the Surviving Company and its Subsidiaries to honor and perform, in accordance with their respective terms, each of the ~~event Parent~~ covenants contained in this Section 6.08. (c) The Surviving Company shall, in its sole discretion, either (i) continue to maintain in effect for a period of at least six (6) years from and after the Effective Time for the Persons who, as of the date of this Agreement, are covered by Union’s directors’ and officers’ liability insurance and fiduciary liability insurance (collectively, “D&O Insurance”) D&O Insurance with recognized insurance companies and with terms, conditions, retentions and levels of coverage at least as favorable as provided in Union’s existing policies as of the date of this Agreement, or, if such insurance is unavailable, the Surviving Company (or its successor) shall purchase the best available D&O Insurance from a recognized insurance company for such six-year period with terms, conditions, retentions and with levels of coverage at least as favorable as provided in Union’s existing policies as of the date of this Agreement; or (ii) obtain and fully pay for “tail” insurance policies with a claims period of at least six (6) years from and after the Effective Time with recognized insurance companies for the Persons who, as of the date of this Agreement, are covered by Union’s existing D&O Insurance, with terms, conditions, retentions and levels of coverage at least as favorable as Union’s existing D&O Insurance with respect to matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the transactions or actions contemplated by this Agreement), with respect to Union’s D&O Insurance. (d) If Visor or the Surviving ~~Corporation~~ Company or any of their respective successors or assigns (i) ~~consolidates~~ shall consolidate with or ~~merges~~ merge into any other ~~Person~~ corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or ~~merger,~~ merger or (ii) ~~transfers~~ shall transfer all or substantially all of its properties and assets to any ~~Person~~individual, corporation or other entity, then, and in each such case, proper ~~provision~~ provisions shall be made so that the successors and assigns of ~~Parent~~ Visor or the Surviving ~~Corporation, as the case may be,~~ Company shall ~~succeed to~~ assume all of the obligations set forth in this Section ~~5.7. Parent~~ 6.07. (e) The rights of the Indemnified Parties under this Section 6.07 shall be in addition to any rights such Indemnified Parties may have under the Organizational Documents of Union or the comparable documents of any of Union’s Subsidiaries, or under any applicable Contracts or Laws in effect on the date of this Agreement and, in the case of such documents and Contracts, disclosed to Visor prior to the execution hereof, and Visor shall, and shall cause the Surviving ~~Corporation to~~ Company to, honor and perform under all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, indemnification agreements entered into by Union or any ~~person who is a beneficiary under~~ of its Subsidiaries in effect on the ~~policies referred~~ date of this Agreement and disclosed to ~~in this Section 5.7 and their heirs and representatives, without~~ Visor prior to the ~~prior written consent of such affected D&O Indemnified Party or other person~~execution hereof.

Appears in 2 contracts

Samples: Merger Agreement (Vision Sciences Inc /De/), Merger Agreement (Uroplasty Inc)

Appears in 2 contracts

Samples: Merger Agreement (Kubient, Inc.), Merger Agreement (Kubient, Inc.)

Indemnification of Officers and Directors. (a) ~~From~~ For a period of six (6) years from the Effective Time, Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time ~~through~~ (whether asserted or claimed prior to, at or after the Effective Time) now existing in favor of the current or former directors or officers of any Acquired Corporation pursuant to the organizational documents thereof and any indemnification or other similar agreements of any Acquired Corporation set forth in Section 5.5(a) of the Company Disclosure Schedule, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms, and the Acquired Corporations shall perform their obligations thereunder. Without limiting the foregoing, during the period commencing at the Effective Time and ending on the sixth (6th) anniversary of the ~~date on which the~~ Effective ~~Time occurs~~Time, ~~each of~~ Parent shall, and ~~the Surviving Corporation~~shall cause its Subsidiaries to, ~~jointly and severally, shall~~ indemnify and hold harmless each ~~person~~ individual who is ~~now, or has been at any time prior to~~ as of the date ~~hereof~~of this Agreement, or who becomes prior to the Effective Time, a ~~director~~director or officer of any Acquired Corporation or who is as of the date of this Agreement, ~~officer~~or who thereafter commences prior to the Effective Time, ~~fiduciary~~ serving at the request of any Acquired Corporation as a director or ~~agent~~ officer of ~~Parent or the Company and their respective Subsidiaries, respectively~~ another Person (the “~~D&O~~ Indemnified ~~Parties~~Persons”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, ~~suit, proceeding~~ suit or ~~investigation~~proceeding, whether civil, criminal, administrative or ~~investigative~~investigative (including with respect to matters existing or occurring at or prior to the Effective Time, including this Agreement and the transactions and actions contemplated hereby), arising out of or pertaining to the fact that the ~~D&O~~ Indemnified ~~Party~~ Person is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ any Acquired Corporation or is or was serving at the request of ~~the Company~~any Acquired Corporation as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under applicable ~~Law~~Legal Requirements. ~~Each D&O Indemnified Party will be entitled to advancement of expenses incurred in~~ In the ~~defense~~ event of any such claim, action, ~~suit~~suit or proceeding, ~~proceeding~~ (x) Parent shall, and shall cause its Subsidiaries to, pay, in advance of the final disposition of such claim, action, suit or ~~investigation from each of Parent and~~ proceeding, any expenses incurred in defense thereof by the ~~Surviving Corporation, jointly and severally,~~ Indemnified Person upon receipt ~~by Parent or the Surviving Corporation from the D&O Indemnified Party~~ of ~~a request therefor; provided that any such person to whom expenses are advanced provides~~ an undertaking ~~to Parent, to the extent then required~~ by ~~the DGCL,~~ such Indemnified Person to repay such ~~advances~~ amount if it is shall ultimately be determined that such ~~person~~ Indemnified Person is not entitled to ~~indemnification~~be indemnified pursuant to the preceding sentence and (y) Parent shall, and shall cause its Subsidiaries to, reasonably cooperate in the defense of any such matter. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for For a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective ~~Time~~ Time, the Acquired Corporations shall (and Parent shall cause the Acquired Corporations to) cause to be maintained in effect the current policies of directors’ and officers’ insurance maintained by or for the benefit of the Acquired Corporations or provide substitute policies for the Acquired Corporations and their current and former directors and officers who are currently covered by the directors’ and officers’ insurance coverage currently maintained by or for the benefit of the Acquired Corporations as of the date of this Agreement, in either case, of not less than the existing coverage and having other terms not less favorable in the aggregate to the insured Persons than the directors’ and officers’ insurance coverage currently maintained by or for the benefit of the Acquired Corporations with respect to ~~any claim related to any period of time~~ claims arising from facts or events that occurred at or before the Effective Time (with insurance carriers having at least an “A” rating by A.M. Best), except that in no event shall Parent or the Surviving Corporation be required to pay with respect to such insurance policies more than 300% of the aggregate annual premium most recently paid by the Acquired Corporations prior to the date of this Agreement (the “Maximum Amount”), and if the Surviving Corporation is unable to obtain the insurance required by this Section 5.5(b) it shall obtain as much comparable insurance as possible for the years within such six (6)-year period for a premium equal to the Maximum Amount. In lieu of such insurance, prior to the Closing Date the Company may, at its option, purchase a “tail” directors’ and officers’ insurance policy for the Acquired Corporations and their current and former directors and officers who are currently covered by the directors’ and officers’ insurance coverage currently maintained by or for the benefit of the Acquired Corporations, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ insurance coverage currently maintained by or for the benefit of the Acquired Corporations with respect to claims arising from facts or events that occurred at or before the Effective Time; provided that in no event shall the cost of any such tail policy exceed the Maximum Amount, and if such cost would exceed the Maximum Amount, then the Company may obtain a tail policy with the greatest coverage available for a cost not exceeding the Maximum Amount. ~~During~~ Parent and the ~~term~~ Surviving Corporation shall maintain such policies in full force and effect for a period of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. six (e6) ~~From and~~ years after the Effective Time, ~~Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by~~ and continue to honor the ~~persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7~~obligations thereunder. (fc) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) From and after the Effective Time, in In the event ~~Parent or the Surviving~~ that any Acquired Corporation or any of ~~their respective~~ its successors or assigns (i) consolidates with or merges into any other Person and ~~shall~~ is not be the continuing or surviving corporation or ~~entity~~ Entity of such consolidation or ~~merger,~~ merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, the Acquired Corporation, as applicable, shall cause proper provision ~~shall~~ to be made so that the successors and assigns of ~~Parent or the Surviving Corporation, as the case may be, shall succeed to~~ such Acquired Corporation assume the obligations set forth in this Section ~~5.7. Parent shall cause the Surviving Corporation to perform all~~ 5.5. (d) The provisions of ~~the obligations of the Surviving Corporation under~~ this Section ~~5.7. The obligations set forth in this Section 5.7~~ 5.5 (i) shall ~~not~~ survive the Effective Time and (ii) are intended to be ~~terminated~~for the benefit of, ~~amended~~ and will be enforceable by, each indemnified or ~~otherwise modified in any manner that adversely affects any D&O~~ insured party (including the Indemnified ~~Party~~Persons), his or ~~any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs~~ her heirs, successors, assigns and representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification, advancement of expenses, exculpation or contribution that any such Person may have by contract or otherwise. Unless required by applicable Legal Requirement, this Section 5.5 may not be amended, altered or repealed after the Effective Time in such a manner as to adversely affect the rights of any Indemnified Person or any of their successors, assigns or heirs without the prior written consent of ~~such~~ the affected ~~D&O~~ Indemnified ~~Party or other person~~Person.

Appears in 2 contracts

Samples: Merger Agreement (Mirati Therapeutics, Inc.), Merger Agreement (Mirati Therapeutics, Inc.)

Indemnification of Officers and Directors. (a) ~~From the Effective Time through the sixth~~ For six (~~6th~~6) anniversary of the date on which the Effective Time occurs, each of Parent and the Surviving Corporation, jointly and severally, shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to years after the Effective Time, ~~a director~~to the fullest extent permitted by Law, ~~officer~~Parent shall cause the Surviving Corporation to, ~~fiduciary or agent~~ and the Surviving Corporation shall, indemnify, defend and hold harmless (and advance expenses in connection therewith) each present and former director and officer of ~~Parent or~~ (i) the Company ~~and their respective Subsidiaries~~or any of the Company Subsidiaries or (ii) any other Entity that was serving in such capacity at the Company’s request (in each case, ~~respectively~~ when acting in such capacity) (the “~~D&O~~ Indemnified Parties”), against ~~all claims, losses, liabilities, damages, judgments, fines~~ any costs or expenses (including reasonable attorneys’ and ~~reasonable fees, costs and expenses, including attorneys~~other professionals’ fees and disbursements), judgments, fines, penalties, losses, claims, damages or liabilities or amounts that are paid in settlement, of or incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or ~~investigative~~investigative to which such Indemnified Party is a party or is otherwise involved (including as a witness), ~~arising~~ and arises out of or ~~pertaining~~ pertains to the fact that the ~~D&O~~ Indemnified Party is or was ~~a director, officer, fiduciary~~ an officer or ~~agent of Parent or~~ director of the Company, any of the Company Subsidiaries or such other Entity, with respect to matters existing or occurring at or prior to the Effective Time (including this Agreement, the Merger and the other transactions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for For a period of six (6) years from the Effective ~~Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective~~ Time, ~~were officers or directors~~ the certificate of ~~Parent. The Organizational Documents~~ incorporation and bylaws of the Surviving Corporation shall ~~contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain,~~ contain provisions no less favorable with respect to ~~indemnification~~elimination of liability, indemnification and advancement of expenses ~~and exculpation~~ of ~~present and former~~ individuals who were directors and officers ~~as those~~ of the Company prior to the Effective Time than are set ~~forth in the Organizational Documents of Parent~~ forth, as of the date of this Agreement, in the Company’s certificate of incorporation and bylaws. (c) ~~From and after the Effective Time,~~ The Surviving Corporation (i) or Parent on the Surviving ~~Corporation~~ Corporation’s behalf) shall ~~fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of~~ fully prepay no later than immediately prior to the ~~Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties~~Closing, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “~~tail policy~~tail” ~~(the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’~~ insurance policies ~~for~~ with a claims ~~reporting or discovery~~ period of at least six (6) years from and after the Effective Time with recognized insurance companies for the Persons who, as of the date of this Agreement, are covered by the Company’s existing directors’ and officers’ liability insurance (the “D&O Insurance”), with terms, conditions, retentions and levels of coverage that are reasonably acceptable to the Company and at least as favorable as the Company’s existing D&O Insurance with respect to ~~any claim related to any period of time at~~ matters existing or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective ~~Time~~Time (including in connection with this Agreement or the transactions or actions contemplated hereby). Notwithstanding anything to the contrary in the foregoing, ~~whether asserted or claimed prior to, at or after the Closing, now existing~~ in ~~favor of the current or former directors, officers or employees, as the case may be, of~~ no event shall Parent or the Surviving Corporation be required to expend for such policies an annual premium amount in excess of three hundred percent (300%) of the annual premiums currently paid by the Company for such insurance; provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation (or Parent on the Surviving Corporation’s behalf) shall obtain a policy with the greatest coverage available for a cost not exceeding such amount. (d) In the event of any claim, action, suit, proceeding or investigation in which any claims are made in respect of which such Indemnified Party would be entitled to indemnification pursuant to Section 5.8(a), any Indemnified Party wishing to claim such indemnification shall promptly notify Parent thereof in writing, but the failure to so notify shall not relieve the Surviving Corporation of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the Surviving Corporation. In the event of any such claim, action, suit, proceeding or investigation: (i) the Surviving Corporation shall have the right to assume the defense thereof (it being understood that by electing to assume the defense thereof, the Surviving Corporation will not be deemed to have waived any right to object to the Indemnified Party’s entitlement to indemnification hereunder with respect thereto or assumed any liability with respect thereto), except that if the Surviving Corporation elects not to assume such defense or legal counsel for the Indemnified Party advises that there are issues which raise conflicts of interest between the Surviving Corporation and the Indemnified Party, the Indemnified Party may retain legal counsel reasonably satisfactory to Parent and to the provider of any insurance obtained in accordance with the foregoing Section 5.8(c), and the Surviving Corporation shall promptly pay all reasonable and documented fees, costs and expenses of such legal counsel for the Indemnified Party as ~~provided in their respective Organizational Documents or~~ statements therefor are received; provided, however, that (1) the Surviving Corporation shall be obligated pursuant to this Section 5.8(d) to pay for only one firm of legal counsel for all Indemnified Parties in any ~~agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be~~ jurisdiction (in addition to local counsel if reasonably necessary) unless the ~~rights otherwise available~~ use of one legal counsel for such Indemnified Parties would present such legal counsel with a conflict of interest (in which case the fewest number of legal counsels necessary to avoid conflicts of interest shall be used) and (2) the Indemnified Party shall have made an undertaking to repay all such fees, costs or expenses paid by the Surviving Corporation if and to the ~~current and former officers and directors~~ extent that it is ultimately determined by a court of ~~Parent~~ competent jurisdiction in a final judgment that the Indemnified Party is not entitled to be indemnified by the Surviving Corporation; (ii) the Indemnified Parties shall cooperate in the defense of any such matter if the Surviving Corporation elects to assume such defense; (iii) the Surviving Corporation shall not be liable for any settlement effected without their prior written consent and the ~~Company by Law, charter, statute, bylaw or agreement~~prior written consent of the provider of any insurance obtained in accordance with the foregoing Section 5.8(c); and (iv) the Surviving Corporation shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall ~~operate for~~ have become final, that the ~~benefit of~~indemnified action of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law. Notwithstanding anything herein to the contrary, the Surviving Corporation shall not settle, compromise or consent to the entry of any judgment in any claim, action, suit, proceeding or investigation (and ~~shall~~ in which indemnification could be ~~enforceable by~~sought by Indemnified Parties hereunder), ~~each~~ unless such settlement, compromise or consent includes an unconditional release of ~~the D&O~~ such Indemnified ~~Parties~~Party from all liability arising out of such claim, ~~their heirs and their representatives~~action, suit, proceeding or investigation or such Indemnified Party otherwise consents in writing. (ge) ~~From and after the Effective Time, in the event~~ If Parent or the Surviving Corporation or any of their respective successors or assigns (i) ~~consolidates~~ shall consolidate with or ~~merges~~ merge into any other ~~Person~~ corporation or Entity and shall not be the continuing or surviving corporation or ~~entity~~ Entity of such consolidation or ~~merger,~~ merger or (ii) ~~transfers~~ shall transfer all or substantially all of its properties and assets to any ~~Person~~individual, corporation or other Entity, then, and in each such case, proper ~~provision~~ provisions shall be made (whether by operation of law or otherwise) so that the successors and assigns of Parent or the Surviving Corporation shall assume all of the obligations of Parent and the Surviving Corporation, as ~~the case may be~~applicable, ~~shall succeed to the obligations~~ set forth in this Section ~~5.7~~5.8. (f) The provisions of this Section 5.8 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective successors, heirs and legal representatives, shall be binding on all successors and assigns of Parent and the Surviving Corporation and shall not be amended in any manner that is adverse to the Indemnified Parties (including their successors, heirs and legal representatives) without the written consent of the Indemnified Party (including the successors, heirs and legal representatives) affected thereby. (g) The rights of the Indemnified Parties under this Section 5.8 shall be in addition to any rights such Indemnified Parties may have under the Company Organizational Documents or under any applicable Contracts or Laws in effect on the date of this Agreement. Parent shall, and shall cause the Surviving Corporation to to, honor and perform under all indemnification agreements entered into by the Company or any of the ~~obligations~~ Company Subsidiaries in effect on the date of this Agreement and set forth on Section 5.8(g) of the ~~Surviving Corporation~~ Company Disclosure Letter, and any provisions under ~~this Section 5.7. The obligations set forth in this Section 5.7~~ such indemnification agreements shall not be ~~terminated~~amended, ~~amended~~ repealed or otherwise modified in any manner that would materially adversely ~~affects~~ affect the elimination of liability, indemnification or advancement of expenses rights thereunder of any ~~D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of~~ such ~~affected D&O Indemnified Party or other person~~individual.

Appears in 2 contracts

Samples: Merger Agreement (APA Corp), Merger Agreement (Callon Petroleum Co)

Indemnification of Officers and Directors. (a) From and after the Effective ~~Time through~~ Time, Parent agrees that it will, and will cause the ~~sixth (6th) anniversary of the date on which the Effective Time occurs~~Company to, ~~each of Parent and the Surviving Corporation, jointly and severally, shall~~ indemnify and hold harmless each ~~person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, fiduciary or agent of Parent or the Company~~ present and ~~their respective Subsidiaries, respectively~~ former director and officer (the ~~“D&O~~ "Indemnified Parties”"), against ~~all claims~~any costs or expenses (including attorneys' fees), judgments, fines, losses, ~~liabilities~~claims, damages, ~~judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements,~~ liabilities or amounts paid in settlement incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to ~~the fact that the D&O Indemnified Party is~~ matters existing or was a director, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the ~~Closing~~Effective Time, ~~now existing~~ to the fullest extent that the Company would have been permitted under Delaware law and its Certificate of Incorporation or bylaws in ~~favor~~ effect on the date hereof to indemnify such Indemnified Party (and Parent and the Company shall also advance expenses as incurred to the fullest extent permitted under applicable Law, provided the Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Party is not entitled to indemnification). (b) For a period of six years after the ~~current~~ Effective Time, Parent shall maintain or ~~former~~ shall cause the Company to maintain (to the extent available in the market) in effect a directors~~, officers or employees,~~ ' and officers' liability insurance policy covering those persons who are currently covered by the Company's directors' and officers' liability insurance policy (copies of which have been heretofore delivered by the Company to Parent) with coverage in amount and scope at least as favorable as the ~~case may be, of~~ Company's existing coverage; provided that in no event shall Parent or the Company ~~as provided~~ be required to expend in ~~their respective Organizational Documents~~ the aggregate in excess of 200% of the annual premium currently paid by the Company for such coverage; and if such premium would at any time exceed 200% of the such amount, then Parent or ~~in any agreement~~ the Company shall ~~survive~~ maintain insurance policies which provide the ~~Merger~~ maximum and ~~shall continue in full force and effect.~~ best coverage available at an annual premium equal to 200% of such amount. (c) The provisions of this Section ~~5.7~~ 5.09 are intended to be in addition to the rights otherwise available to the current ~~and former~~ officers and directors of ~~Parent and~~ the Company by Law, charter~~, statute~~, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the ~~D&O~~ Indemnified Parties, their heirs and their representatives. (g) From and after the Effective Time, in the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other personSECTION

Appears in 2 contracts

Samples: Merger Agreement (Magellan Health Services Inc), Merger Agreement (Magellan Health Services Inc)

Appears in 2 contracts

Samples: Agreement and Plan of Merger (MorphImmune Inc.), Merger Agreement (Immunome Inc.)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time ~~occurs~~occurs (or such period in which a D&O Indemnified Party (defined below) is asserting a claim for indemnification or other protections pursuant to this Section 5.15 to the extent arising prior to the end of such six-year period), each of ~~Parent~~ Homology and the Surviving ~~Corporation, jointly and severally,~~ Corporation shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Homology or ~~the Company and their respective Subsidiaries~~Q32, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, settlements, damages, judgments, fines and penalties and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, formal or informal, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Homology or of ~~the Company~~Q32, whether asserted or claimed prior to, at or after the Effective ~~Time~~Time (including in connection with this Agreement or the Contemplated Transactions), in each case, to the fullest extent permitted under ~~applicable Law~~Delaware Law (including as it may be amended after the date of this Agreement to increase the extent to which a corporation may provide indemnification). Each D&O Indemnified Party will be entitled to advancement of fees, costs and expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of ~~Parent~~ Homology and the Surviving Corporation, jointly and severally, upon receipt by ~~Parent~~ Homology or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom fees, costs or expenses are advanced provides an undertaking to ~~Parent~~Homology, to the extent then required by ~~the DGCL~~Delaware Law, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. Homology and the Surviving Corporation shall each cooperate with the D&O Indemnified Party in the defense of any actual or threatened claim, action, suit, proceeding or investigation. (b) The provisions of ~~the~~ Homology’s Organizational Documents ~~of Parent~~ with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent~~ Homology that are presently set forth in ~~the~~ Homology’s Organizational Documents ~~of Parent as of the date of this Agreement~~ shall not be amended, modified or repealed for a period of six ~~(6)~~ years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of ~~Parent~~Homology, unless such modification is required by applicable Law. The Surviving Corporation’s Organizational Documents ~~of the Surviving Corporation~~ shall contain, and ~~Parent~~ Homology shall cause the ~~Organizational Documents~~ certificate of incorporation of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of fees, costs and expenses and exculpation of future, present and former directors and officers as those presently set forth in ~~the~~ Homology’s and Q32’s Organizational ~~Documents of Parent as of the date of this Agreement~~Documents, respectively. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of Q32 to its D&O Indemnified Parties as of immediately prior to the ~~Company~~ Effective Time pursuant to any indemnification, exculpation and advancement provisions under Q32’s Organizational Documents and pursuant to any indemnification agreements between Q32 and such D&O Indemnified Parties, with respect to any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, formal or informal, arising out of matters occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including in connection with this Agreement or the Contemplated Transactions), and (ii) Homology shall fulfill and honor in all respects the obligations of Homology to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under ~~the Company~~Homology’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent Homology and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, ~~Parent~~ Homology and the Surviving Corporation shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to ~~Parent~~Homology. In addition, ~~Parent~~ Homology shall purchase, prior to the Effective Time, a ~~six (6)-year~~ six-year prepaid ~~“tail policy” (the “D&O Tail Policy”) for the~~ non-cancellable extension of ~~the~~ directors’ and officers’ liability coverage of ~~Parent~~Homology’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six ~~(6)~~ years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective ~~Time. During~~ Time “Homology D&O Tail Coverage” with the ~~term~~ same or substantially the same terms, conditions, retentions and limits of liability as the coverage provided under Homology’s existing policies as of the ~~D&O Tail Policy~~date of this Agreement with respect to any actual or alleged error, ~~Parent shall not take~~ misstatement, misleading statement, act, omission, neglect, breach of duty or any ~~action following~~ matter claimed against a director or officer of Homology by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time ~~to cause~~ (including in connection with this Agreement or the ~~D&O Tail Policy to be cancelled~~ Contemplated Transactions or ~~any provision therein to be amended or waived~~ in ~~any manner that would adversely affect in any material respect the rights~~ connection with Homology’s initial public offering of ~~their former and current officers and directors~~shares of Homology Common Stock). (e) From and after the Effective Time, ~~Parent~~ each of Homology and the Surviving Corporation, jointly and severally, shall pay all expenses, including reasonable fees, costs and expenses, including attorneys’ ~~fees~~fees and disbursements in advance, that are incurred by the persons referred to in this Section ~~5.7~~ 5.15 in connection with their ~~successful~~ enforcement of the rights provided to such persons in this Section ~~5.7~~5.15. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 5.15 are intended to be in addition to the rights otherwise available to the current and former officers and directors of ~~Parent~~ Homology and ~~the Company~~ Q32 by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their ~~representatives~~Representatives. (g) ~~From and after the Effective Time, in~~ In the event ~~Parent~~ Homology or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or ~~merger,~~ merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ Homology or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~5.15. ~~Parent~~ Homology shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person5.15.

Appears in 2 contracts

Samples: Merger Agreement (Homology Medicines, Inc.), Merger Agreement (Homology Medicines, Inc.)

Indemnification of Officers and Directors. (a) ~~From~~ For six years after the Effective Time, Parent shall cause the Surviving Corporation to indemnify and hold harmless, to the extent that the Surviving Corporation is permitted to indemnify under applicable Legal Requirements, each Person who is now or was prior to the Effective Time ~~through the sixth (6th) anniversary~~ an officer or director of the ~~date on which the Effective Time occurs, each of Parent~~ Acquired Companies and ~~the Surviving Corporation, jointly and severally, shall indemnify and hold harmless~~ each person who is ~~now~~now or was prior to the Effective Time an officer or director of the Acquired Companies who served as a fiduciary under or with respect to any employee benefit plan of the Acquired Companies (within the meaning of Section 3(3) of ERISA) (each, an “Indemnified Person”) against any costs or expenses, judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, arbitration, proceeding or investigation in respect of, or ~~has been~~ arising out of, acts or omissions by such Indemnified Person in his her capacity as an officer or director of the Acquired Companies, or a fiduciary under or with respect to any employee benefit plan of the Acquired Companies, occurring, or alleged to have occurred, at or prior to the Effective Time; provided, however, that if, at any time prior to the ~~date hereof, or who becomes prior to~~ sixth anniversary of the Effective Time, any Indemnified Person delivers to Parent a ~~director~~written notice asserting a claim for indemnification under this Section 5.5(a) then the claim asserted in such notice shall survive the sixth anniversary of the Effective Time until such time as such claim is fully and finally resolved. In addition, ~~officer~~for six years after the Effective Time, ~~fiduciary~~ Parent shall cause the Surviving Corporation to advance, to the extent that the Surviving Corporation is permitted to advance under applicable Legal Requirement, prior to the final disposition of any actual or agent of Parent or the Company and their respective Subsidiaries, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any threatened claim, action, suit, arbitration, proceeding or ~~investigation~~investigation for which indemnification may be sought under this Agreement, ~~whether civil~~promptly following request by an Indemnified Person therefor, ~~criminal~~all costs, ~~administrative or investigative, arising out of or pertaining to the fact that the D&O~~ fees and expenses (including reasonable attorneys’ fees and investigation expenses) incurred by such Indemnified ~~Party is or was a director, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time,~~ Person in ~~each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of~~ connection with any such claim, action, suit, arbitration, proceeding or ~~investigation from each~~ investigation; provided, however, that any advancement of expenses pursuant to this Section 5.5(a) shall be conditioned upon the Surviving Corporation’s receipt of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be ultimately determined by final judgment of a court of competent jurisdiction that the Indemnified Person is not entitled to be indemnified pursuant to this Section 5.5(a). In the event of any such action, Parent and the Surviving ~~Corporation, jointly and severally, upon receipt by Parent or~~ Corporation shall cooperate with the ~~Surviving Corporation from~~ Indemnified Person in the ~~D&O Indemnified Party~~ defense of ~~a request therefor; provided that~~ any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnificationaction. (b) ~~The provisions~~ From the Effective Time until the sixth anniversary of the ~~Organizational Documents~~ Effective Time, the Surviving Corporation shall maintain in effect, for the benefit of ~~Parent~~ the Indemnified Persons with respect to ~~indemnification, advancement of expenses~~ their acts and ~~exculpation of present and former~~ omissions as directors and officers occurring prior to the Effective Time, the existing policy of ~~Parent that are set forth in~~ directors’ and officers’ liability insurance maintained by the ~~Organizational Documents of Parent~~ Company as of the date of this Agreement ~~shall not be amended, modified or repealed for a period of six (6) years from~~ in the ~~Effective Time in a manner that would adversely affect~~ form disclosed by the ~~rights thereunder of individuals who, at or~~ Company to Parent prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this ~~Agreement.~~ Agreement (~~c) From and after~~ the ~~Effective Time~~“Existing D&O Policy”), ~~(i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior~~ to the ~~Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and~~ extent that such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance coverage is available on commercially reasonable terms; provided, however, that: (i) the Surviving Corporation may substitute for the Existing D&O Policy a policy or policies of comparable coverage; and (ii) the Surviving Corporation shall not be required to pay annual premiums for the Existing D&O Policy (or for any substitute policies~~, with an effective date as~~ ) in excess of 300% of the ~~Closing Date, on commercially available terms and conditions and with coverage limits customary~~ annual premium paid prior to the date of this Agreement by the Company for ~~U.S. public companies similarly situated to Parent~~the Existing D&O Policy (the “Maximum Premium”). In ~~addition~~the event any future annual premiums for the Existing D&O Policy (or any substitute policies) exceed the Maximum Premium in the aggregate, ~~Parent~~ the Surviving Corporation shall be entitled to reduce the amount of coverage of the Existing D&O Policy (or any substitute policies) to the amount of coverage that can be obtained for a premium equal to the Maximum Premium. At the Company’s option, it may purchase, prior to the Effective Time, ~~a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’~~ and ~~officers’ liability coverage~~ in lieu of Parent’s ~~existing directors’~~ obligations under this Section 5.5(b), a six-year prepaid (i) “tail” policy on terms and ~~officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after~~ conditions providing substantially equivalent benefits as the ~~Effective Time~~ Existing D&O Policy with respect to ~~any claim related to any period of time at or prior to~~ matter arising before the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) From and after the Effective Time, in the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or ; and/or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.7policy providing for Side B coverage. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under In connection with the policies ~~referred to~~ contemplated by the foregoing sentence, (A) the Company will not spend more than $3,000,000 in ~~this Section 5.7 and their heirs and representatives,~~ the aggregate for such policies without the prior written consent of Parent; and (B) Parent shall cause any such ~~affected D&O Indemnified Party~~ policies to be maintained in full force and effect for their full term, and cause all obligations thereunder to be honored by the Surviving Corporation. If the Company elects not to purchase either of the foregoing policies, Parent or ~~other person~~the Surviving Corporation shall have the right to do so in lieu of complying with their obligations under this Section 5.5(b).

Appears in 2 contracts

Samples: Merger Agreement (Intel Corp), Merger Agreement (Altera Corp)

Appears in 2 contracts

Samples: Merger Agreement (Merck & Co., Inc.), Merger Agreement (Immune Design Corp.)

Appears in 1 contract

Samples: Merger Agreement (Asa International LTD)

Indemnification of Officers and Directors. (a) ~~From~~ For a period of not less than six (6) years from the Effective ~~Time through the sixth (6th) anniversary of the date on which the Effective Time occurs~~Time, ~~each of~~ Parent shall, and shall cause the Surviving ~~Corporation~~Corporation or any applicable Subsidiary thereof (collectively, ~~jointly and severally~~the “D&O Indemnifying Parties”), ~~shall~~ to the fullest extent each such D&O Indemnifying Party is authorized or permitted by Applicable Law, to: (i) indemnify and hold harmless each person who is ~~now~~at the date of this Agreement, was previously, or ~~has been at any time prior to~~ during the period from the date ~~hereof, or who becomes prior to~~ of this Agreement through the date of the Effective ~~Time~~Time will be, serving as a director or officer of the Company or any of its Subsidiaries or, at the request or for the benefit of the Company or any of its Subsidiaries, as a director, ~~officer, fiduciary~~ trustee or ~~agent~~ officer of ~~Parent~~ any other entity or any benefit plan maintained by the Company ~~and their respective Subsidiaries~~or any of its Subsidiaries (collectively, ~~respectively (~~the “D&O Indemnified Parties”), ~~against all claims~~as now or hereafter in effect, ~~losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred~~ in connection with any D&O Claim and any losses, claims, damages, liabilities, Claim Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) relating to or resulting from such D&O Claim; and (ii) promptly advance to such D&O Indemnified Party any Claim Expenses incurred in defending, serving as a witness with respect to or otherwise participating with respect to any D&O Claim in advance of the final disposition of such D&O Claim, including payment on behalf of or advancement to the D&O Indemnified Party of any Claim Expenses incurred by such D&O Indemnified Party 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 the D&O Indemnifying Party’s receipt of a written undertaking by or on behalf of such D&O Indemnified Party to repay such Claim Expenses if it is ultimately determined under Applicable Law that such D&O Indemnified Party is not entitled to be indemnified. All rights to indemnification and advancement conferred hereunder shall continue as to a Person who has ceased to be a director, officer or employee of the Company or any of its Subsidiaries after the date of this Agreement and shall inure to the benefit of such Person’s heirs, successors, executors and personal and legal representatives. As used in this Section 5.5: (x) the term “D&O Claim” means any threatened, asserted, pending or completed claim, action, suit, ~~proceeding~~ proceeding, inquiry or investigation, whether instituted by any party hereto, any Governmental Authority or any other Person, whether civil, criminal, ~~administrative~~ administrative, investigative or ~~investigative~~other, including any arbitration or other alternative dispute resolution mechanism, arising out of or pertaining to matters that relate to such D&O Indemnified Party’s duties or service (A) as a director, officer or employee of the ~~fact that~~ Company or the applicable Subsidiary thereof at or prior to the Effective Time (including with respect to any acts, facts, events or omissions occurring in connection with the approval of this Agreement, the Merger or the consummation of the other transactions contemplated by this Agreement, including the consideration and approval thereof and the process undertaken in connection therewith and any D&O Claim relating thereto) or (B) as a director, trustee, officer or employee of any other entity or any benefit plan maintained by the Company or any of its Subsidiaries (for which such D&O Indemnified Party is or was ~~a director, officer, fiduciary~~ serving at the request or ~~agent of Parent or~~ for the benefit of the ~~Company, whether asserted~~ Company or ~~claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement~~ any of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (bits Subsidiaries) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time; and (y) the term “Claim Expenses” means reasonable out-of-pocket attorneys’ fees and all other reasonable out-of-pocket costs, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and ~~exculpation of present~~ obligations (including experts’ fees, travel expenses, court costs, retainers, transcript fees, legal research, duplicating, printing and ~~former directors~~ binding costs, as well as telecommunications, postage and ~~officers as those set forth~~ courier charges) paid or incurred in ~~the Organizational Documents of Parent as of the date of~~ 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 (including on appeal) any D&O Claim for which indemnification is authorized pursuant to this ~~Agreement. (c) From and after the Effective Time~~Section 5.5(a), ~~(i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company~~ including any action relating to ~~its~~ a claim for indemnification or advancement brought by a D&O Indemnified ~~Parties as of immediately prior~~ Party. No D&O Indemnifying Party shall settle, compromise or consent to the ~~Closing pursuant to~~ entry of any judgment in any actual or threatened D&O Claim in respect of which indemnification ~~provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and~~ has been sought by such D&O Indemnified ~~Parties~~Party hereunder unless such settlement, ~~with respect to claims~~ compromise or judgment includes an unconditional release of such D&O Indemnified Party from all liability arising out of ~~matters occurring at~~ such D&O Claim, or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified ~~Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time~~Party consents thereto. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) From and after the Effective Time, in the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person

Appears in 1 contract

Samples: Merger Agreement (CarLotz, Inc.)

Indemnification of Officers and Directors. (a) From the Effective Time through the ~~sixth (6th)~~ seventh anniversary of the date on which the Effective Time occurs, each of ~~Parent~~ Alcobra and the Surviving ~~Corporation~~Corporation shall, jointly and severally, ~~shall~~ indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent or the Company and their respective Subsidiaries, respectively~~ Alcobra (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent or of the Company~~Alcobra, whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under ~~applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred~~ the Companies Law and in the ~~defense~~ case of ~~any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or~~ the Surviving Corporation ~~from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent,~~ to the fullest extent ~~then required by~~ permitted under the DGCL~~, to repay such advances if it is ultimately determined that such person is not entitled to indemnification~~. (b) The ~~provisions~~ Articles of Association of Alcobra and the certificate of incorporation and bylaws of the ~~Organizational Documents~~ Surviving Corporation shall contain, and Alcobra shall cause the certificate of ~~Parent~~ incorporation and bylaws of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent that~~ each of Alcobra than are presently set forth in the ~~Organizational Documents~~ Articles of ~~Parent~~ Association of Alcobra and the certificate of incorporation and bylaws of Arcturus, as ~~of the date of this Agreement~~ applicable, which provisions shall not be amended, modified or repealed for a period of ~~six (6) years~~ seven years’ time from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this AgreementAlcobra. (c) ~~From~~ Alcobra shall purchase a “tail” insurance policy for Alcobra’s officers and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, directors with an effective date as of the Closing Date, ~~on commercially available~~ which shall remain effective for seven years following the Closing Date, with at least the same coverage and amounts and containing the same terms and conditions ~~and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior~~ that are not less favorable to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current Alcobra officers and ~~directors~~directors than the Existing Alcobra D&O Policies. (ed) ~~From and after the Effective Time, Parent~~ Alcobra shall pay all reasonable expenses, including reasonable attorneys’ fees, that ~~are~~ may be incurred by the persons referred to in this Section ~~5.7~~ 5.8 in connection with their ~~successful~~ enforcement of ~~the~~ their rights provided ~~to such persons~~ in this Section ~~5.7~~5.8. (fe) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 5.8 are intended to be in addition to the rights otherwise available to the ~~current and former officers and directors of Parent and the Company~~ D&O Indemnified Parties by ~~Law~~law, charter, statute, ~~bylaw~~ bylaw, Articles of Association or agreement, . The obligations of Alcobra under this Section 5.8 shall survive the consummation of the Merger and shall ~~operate for~~ not be terminated or modified in such a manner as to adversely affect any D&O Indemnified Party to whom this Section 5.8 applies without the ~~benefit of~~consent of such affected D&O Indemnified Party (it being expressly agreed that the D&O Indemnified Parties to whom this Section 5.8 applies, as well as their heirs and representatives, shall be ~~enforceable by~~third party beneficiaries of this Section 5.8, each of whom may enforce the ~~D&O Indemnified Parties, their heirs and their representatives~~provisions of this Section 5.8). (gf) ~~From and after the Effective Time, in~~ In the event ~~Parent~~ Alcobra or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or ~~entity~~ Entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ Alcobra or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~5.8. ~~Parent~~ Alcobra shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person5.8.

Appears in 1 contract

Samples: Merger Agreement (Alcobra Ltd.)

Indemnification of Officers and Directors. (a) ~~From~~ Subject to applicable Law, from the Effective Time through the ~~sixth (6th)~~ seventh anniversary of the date on which the Effective Time occurs, each of ~~Parent~~ Radiant and the Surviving ~~Corporation, jointly and severally,~~ Company shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Radiant and its Subsidiaries or the Company and ~~their respective~~ its Subsidiaries, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Radiant or of the ~~Company~~Company or any of their Subsidiaries (each, a “Proceeding”), whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. ~~Each~~ Subject to applicable law, each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any ~~such claim, action, suit, proceeding or investigation~~ Proceeding from each of ~~Parent~~ Radiant and the Surviving ~~Corporation~~Company, jointly and severally, upon receipt by ~~Parent~~ Radiant or the Surviving ~~Corporation~~ Company from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to ~~Parent~~Radiant or the Surviving Company, as applicable, to the extent then required by ~~the DGCL~~applicable Law, to repay such advances if it is ultimately determined that such person is not entitled to indemnification~~. (b)~~ . The provisions of the ~~Organizational Documents of Parent~~ Radiant Charter and Radiant Bylaws with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent~~ Radiant that are presently set forth in the ~~Organizational Documents of Parent as of the date of this Agreement~~ Radiant Charter and Radiant Bylaws shall not be amended, modified or repealed for a period of ~~six~~ seven (67) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of ~~Parent~~Radiant, unless such modification is required by applicable Law. ~~The Organizational Documents~~ To the extent permitted by applicable Law, the articles Table of Contents of association of the Surviving ~~Corporation~~ Company shall contain, and ~~Parent~~ Radiant shall cause the ~~Organizational Documents~~ articles of association of the Surviving ~~Corporation~~ Company to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents of Parent as of~~ Radiant Charter and Radiant Bylaws and the ~~date of this Agreement. (c)~~ Company Charter. From and after the Effective Time, (i) the Surviving ~~Corporation~~ Company shall fulfill and honor in all respects the obligations of the Company to ~~its~~ D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the ~~Company’s Organizational Documents~~ Company Charter and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) ~~Parent~~ Radiant shall fulfill and honor in all respects the obligations of ~~Parent~~ Radiant to ~~its~~ D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under ~~Parent’s Organizational Documents~~ the Radiant Charter or Radiant Bylaws and pursuant to any indemnification agreements between ~~Parent~~ Radiant and such D&O Indemnified ~~Parties~~Parties that were in effect prior to the date of this Agreement, with respect to claims arising out of matters occurring at or prior to the Effective Time. (db) From and after the Effective Time, ~~Parent~~ Radiant shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to ~~Parent~~Radiant. In addition, ~~Parent~~ Radiant shall purchase, prior to the Effective Time, a ~~six (6)-year~~ seven-year prepaid “D&O tail policy” ~~(the “D&O Tail Policy”)~~ for the non-cancellable extension of the directors’ and officers’ liability coverage of ~~Parent~~Radiant’s existing directors’ and officers’ insurance policies and Radiant’s existing fiduciary liability insurance policies for the Persons who, as of the date of this Agreement are covered by Radiant’s existing directors’ and officers’ insurance policies and/or the Company’s existing directors’ and officers’ insurance, as applicable, in each case for a claims reporting or discovery period of at least ~~six (6)~~ seven years from and after the Effective ~~Time with respect to any claim related to any period of time at or prior to the Effective~~ Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (ec) From and after the Effective Time, ~~Parent~~ Radiant shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section ~~5.7~~ 5.6 in connection with their successful enforcement of the rights provided to such persons in this Section ~~5.7~~5.6. (fd) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 5.6 are intended to be in addition to the rights otherwise available to the current and former officers and directors of ~~Parent~~ Radiant and the Company by ~~Law~~law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives~~. (g) From and after the Effective Time, in~~ . In the event ~~Parent~~ Radiant or the Surviving ~~Corporation~~ Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ Radiant or the Surviving ~~Corporation~~Company, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~5.6. ~~Parent~~ Radiant shall cause the Surviving ~~Corporation~~ Company to perform all of the obligations of the Surviving ~~Corporation~~ Company under this Section ~~5.7.~~ 5.6. (e) The ~~obligations set forth~~ covenants contained in this Section ~~5.7~~ 5.6 are intended to be for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties and their respective heirs and shall not be ~~terminated~~deemed exclusive of any other rights to which any such Person is entitled, ~~amended~~ whether pursuant to Law, contract or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other personotherwise.

Appears in 1 contract

Samples: Merger Agreement (Restoration Robotics, Inc.)

Indemnification of Officers and Directors. (a) All rights to indemnification by the Company or any other Acquired Corporation now existing in favor of those Persons who are directors and officers of the Company or any other Acquired Corporation as of the date of this Agreement (the “Indemnified Persons”) for their acts and omissions occurring prior to the Effective Time, as provided in the certificate of incorporation, bylaws and other charter and organizational documents of the applicable Acquired Corporation (as in effect as of the date of this Agreement) and as provided in any indemnification agreements between the Acquired Corporation and said Indemnified Persons in the forms made available by the Company to Parent or Parent’s Representatives prior to the date of this Agreement, shall survive the Merger and shall be observed by the Surviving Corporation and its Subsidiaries to the fullest extent available under Delaware law for a period of six (6) years from the Effective Time, and any claim made requesting indemnification pursuant to such indemnification rights within such six (6) year period shall continue to be subject to this Section 6.5(a) and the indemnification rights provided under this Section 6.5(a) until disposition of such claim. (b) From the Effective Time ~~through~~ until the sixth (6th) anniversary of the date on which the Effective Time occurs, ~~each of~~ Parent and the Surviving ~~Corporation~~Corporation (together with their successors and assigns, ~~jointly and severally~~the “Indemnifying Parties”) shall, ~~shall~~ to the extent described in clause (a) above: (i) indemnify and hold harmless each ~~person who is now,~~ Indemnified Person in his or ~~has been at any time prior to the date hereof,~~ her capacity as an officer or ~~who becomes prior to the Effective Time, a director, officer, fiduciary or agent~~ director of ~~Parent or the Company and their respective Subsidiaries, respectively (the “D&O Indemnified Parties”),~~ an Acquired Corporation against all losses, claims, ~~losses~~damages, liabilities, ~~damages, judgments, fines and reasonable~~ fees, ~~costs and~~ expenses, ~~including attorneys’ fees and disbursements,~~ judgments or fines incurred by such Indemnified Person as an officer or director of an Acquired Corporation in connection with any ~~claim, action, suit, proceeding~~ pending or ~~investigation, whether civil, criminal, administrative~~ threatened Legal Proceeding based on or ~~investigative,~~ arising out of of, in whole or ~~pertaining to~~ in part, the fact that ~~the D&O~~ such Indemnified ~~Party~~ Person is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving an Acquired Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and ~~(ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant~~ pertaining to any ~~indemnification provisions under Parent’s Organizational Documents~~ and ~~pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties~~all matters pending, ~~with respect to claims arising out of matters occurring at~~ existing or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the ~~Closing~~Effective Time, ~~now existing~~ including any such matter arising under any claim with respect to the transactions contemplated herein and (ii) advance reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Indemnified Persons in connection with matters for which such Indemnified Persons are eligible to be indemnified pursuant to this Section 6.5(b) after receipt by Parent of a written request for such advance, subject to the execution by such Indemnified Persons of appropriate undertakings in favor of the ~~current~~ Indemnifying Parties to repay such advanced costs and expenses if it is ultimately determined in a final and non-appealable judgment of a court of competent jurisdiction that such Indemnified Person is not entitled to be indemnified under this Section 6.5(b). (c) From the Effective Time until the sixth (6th) anniversary of the Effective Time, the Surviving Corporation shall maintain, and shall cause the other Acquired Corporations to maintain, in effect, the existing policy of directors’ and officers’ liability insurance maintained by the Acquired Corporations as of the date of this Agreement (an accurate and complete copy of which has been made available by the Company to Parent or ~~former directors~~Parent’s Representatives prior to the date of this Agreement) for the benefit of the Indemnified Persons who are currently covered by such existing policy with respect to their acts and omissions occurring prior to the Effective Time in their capacities as directors and officers of the Acquired Corporations (as applicable), ~~officers~~ on terms with respect to coverage, deductibles and amounts no less favorable than the existing policy, or ~~employees, as~~ at or prior to the ~~case may be, of~~ Effective Time Parent or the Company may (through a nationally recognized insurance broker approved by Parent (such approval not to be unreasonably withheld, delayed or conditioned)) purchase a six (6)-year “tail” policy for the existing policy effective as ~~provided in their respective Organizational Documents or in any agreement~~ of the Effective Time and if such “tail policy” has been obtained, it shall ~~survive the Merger and shall continue in full force and effect. The provisions of~~ be deemed to satisfy all obligations to obtain and/or maintain insurance pursuant to this Section ~~5.7 are intended~~ 6.5(c); provided, however, that in no event shall the Surviving Corporation be required to be expend an amount in ~~addition~~ excess of 300% of the annual premium currently payable by the Acquired Corporations with respect to such current policy, it being understood that if the ~~rights otherwise available to the current and former officers and directors of~~ annual premiums payable for such insurance coverage exceeds such amount, Parent ~~and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and~~ shall be ~~enforceable by, each of~~ obligated to cause the ~~D&O Indemnified Parties, their heirs and their representatives~~Surviving Corporation to obtain a policy with the greatest coverage available for a cost equal to such amount. (gd) ~~From and after the Effective Time, in~~ In the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or ~~entity~~ Entity of such consolidation or ~~merger,~~ merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, ~~proper provision~~ Parent shall ~~be made so~~ ensure that the successors and assigns of Parent or the Surviving Corporation, as the case may be, or at Parent’s option, Parent, shall ~~succeed to~~ assume the obligations set forth in this Section ~~5.7. Parent~~ 6.5. (e) The provisions of this Section 6.5 shall ~~cause~~ survive the ~~Surviving Corporation~~ acceptance of Shares for payment pursuant to ~~perform all~~ the Offer and the consummation of the ~~obligations~~ Merger and are (i) intended to be for the benefit of, and shall be enforceable by, each of the ~~Surviving Corporation under~~ Indemnified Persons and their successors, assigns and heirs and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. Unless required by applicable Legal Requirement, this Section ~~5.7. The obligations set forth in this Section 5.7 shall~~ 6.5 may not be ~~terminated~~amended, ~~amended~~ altered or ~~otherwise modified~~ repealed after the Offer Acceptance Time in such a manner as to adversely affect the rights of any ~~manner that adversely affects any D&O~~ Indemnified ~~Party,~~ Person or any ~~person who is a beneficiary under the policies referred to in this Section 5.7 and~~ of their successors, assigns or heirs ~~and representatives,~~ without the prior written consent of ~~such~~ the affected ~~D&O~~ Indemnified ~~Party or other person~~Person.

Appears in 1 contract

Samples: Merger Agreement (Pfizer Inc)

Indemnification of Officers and Directors. (a) From the Effective Time through the ~~sixth (6th)~~ seventh anniversary of the date on which the Effective Time occurs, each of Parent and the Surviving ~~Corporation~~Company, jointly and severally, shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, fiduciary or agent of Parent or the Company and their respective Subsidiaries, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. ~~Each~~ To the extent permitted by the Companies Law, each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving ~~Corporation~~Company, jointly and severally, upon receipt by Parent or the Surviving ~~Corporation~~ Company from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the ~~DGCL~~Companies Law, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the ~~Organizational Documents~~ articles of association of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are presently set forth in the ~~Organizational Documents~~ articles of association of Parent ~~as of the date of this Agreement~~ shall not be amended, modified or repealed for a period of ~~six (6)~~ seven years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The ~~Organizational Documents~~ articles of association of the Surviving ~~Corporation~~ Company shall contain, and Parent shall cause the ~~Organizational Documents~~ articles of association of the Surviving ~~Corporation~~ Company to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents~~ articles of ~~Parent as~~ association of ~~the date of this Agreement~~Company. (c) From and after the Effective Time, (i) the Surviving ~~Corporation~~ Company shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to ~~Parent~~Parent and in coverage amounts as approved by the Company. In addition, Parent shall purchase, prior to the Effective Time, a ~~six (6)-year~~ seven-year prepaid “tail policy” ~~(the “D&O Tail Policy”)~~ for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least ~~six (6)~~ seven years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the ~~D&O Tail Policy~~“tail” policy, Parent shall not take any action following the Effective Time to cause ~~the D&O Tail Policy~~ such “tail” policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of ~~their~~ its former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section ~~5.7~~ ‎5.8 in connection with their successful enforcement of the rights provided to such persons in this Section ~~5.7~~‎5.8. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ ‎5.8 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) ~~From and after the Effective Time, in~~ In the event Parent or the Surviving ~~Corporation~~ Company or any of their respective successors or ~~assigns~~ assigns: (i) consolidates with or merges into any other Person and shall not be the continuing or ~~surviving corporation~~ Surviving Company or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving ~~Corporation~~Company, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~‎5.8. Parent shall cause the Surviving ~~Corporation~~ Company to perform all of the obligations of the Surviving ~~Corporation~~ Company under this Section ~~5.7~~‎5.8. The obligations set forth in this Section ~~5.7~~ ‎5.8 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section ~~5.7~~ ‎5.8 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person.

Appears in 1 contract

Samples: Merger Agreement (Anchiano Therapeutics Ltd.)

Indemnification of Officers and Directors. (a) From and after the Effective ~~Time through the sixth (6th) anniversary of the date on which the Effective Time occurs~~Time, ~~each of Parent~~ Merger Partner shall cause AEGON USA and the Surviving ~~Corporation~~Corporation to indemnify, ~~jointly and severally, shall indemnify~~ defend and hold harmless to the fullest extent permitted under applicable law (excluding personal conduct which is finally adjudicated by a court of competent jurisdiction to constitute the commission of a crime by the relevant individual) each person who ~~is now~~is, or has been at any time prior to the ~~date hereof, or who becomes prior to the~~ Effective Time, an officer or director of Company (or any Subsidiary or division thereof) and each person who served at the request of Company as a director, officer, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or ~~agent of Parent~~ other employee benefit plan or enterprise (individually, an "Indemnified Party" and, collectively, the ~~Company and their respective Subsidiaries, respectively (the “D&O~~ "Indemnified Parties~~”),~~ ") against all losses, claims, ~~losses~~damages, liabilities, ~~damages~~costs or expenses (including attorneys' fees), judgments, ~~fines~~ fines, penalties and ~~reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred~~ amounts paid in settlement in connection with any claim, action, suit, proceeding or ~~investigation, whether civil, criminal, administrative or investigative,~~ investigation arising out of or pertaining to ~~the fact that the D&O Indemnified Party is~~ acts or ~~was a director~~omissions, ~~officer~~or alleged acts or omissions, ~~fiduciary or agent of Parent or of the Company~~by them in their capacities as such, whether commenced, asserted or claimed ~~prior to, at~~ before or after the Effective Time~~, in each case, to~~ . In the ~~fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense~~ event of any such claim, action, suit, proceeding or investigation ~~from each~~ (an "Action"), (i) Merger Partner shall cause AEGON USA and the Surviving Corporation to pay, as incurred, the fees and expenses of ~~Parent and~~ counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to the Surviving Corporation, ~~jointly and severally~~in advance of the final disposition of any such Action to the fullest extent permitted by applicable law, and, if required, upon receipt of any undertaking required by ~~Parent or~~ applicable law, and (ii) Merger Partner shall cause AEGON USA and the Surviving Corporation ~~from~~ to cooperate in the ~~D&O Indemnified Party~~ defense of ~~a request therefor; provided that~~ any such ~~person~~ matter; provided, however, the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld or delayed), and provided further, that Merger Partner shall not be obligated pursuant to ~~whom expenses are advanced provides an undertaking~~ this Section 5.13 to ~~Parent~~cause AEGON USA and the Surviving Corporation to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single Action, to unless, in the ~~extent then required by~~ good faith judgment of any of the ~~DGCL~~Indemnified Parties, ~~to repay~~ there is or may be a conflict of interests between two or more of such ~~advances if it is ultimately determined that such person is not entitled to indemnification~~Indemnified Parties, in which case there may be separate counsel for each similarly situated group. (b) The parties agree that the provisions relating to exoneration of directors and the ~~Organizational Documents~~ rights to indemnification, including provisions relating to advances of ~~Parent~~ expenses incurred in defense of any action or suit, in the certificate of incorporation and bylaws of Company and its Subsidiaries with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to matters occurring through the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and ~~effect. The provisions~~ effect for a period of ~~this Section 5.7 are intended~~ six years from the Effective Time; provided, however, that all rights to be indemnification in ~~addition to~~ respect of any Action pending or asserted or claim made within such period shall continue until the ~~rights otherwise available to the current and former officers and directors~~ disposition of ~~Parent and the Company by Law, charter, statute, bylaw~~ such Action or ~~agreement, and shall operate for the benefit of, and shall be enforceable by, each~~ resolution of ~~the D&O Indemnified Parties, their heirs and their representatives~~such claim. (gc) ~~From and~~ For a period of six years after the Effective Time, ~~in the event Parent or~~ Merger Partner and the Surviving Corporation shall cause to be maintained officers' and directors' liability insurance covering the Indemnified Parties who are or at any time prior to the Effective Time covered by the Company's existing officers' and directors' liability insurance policies on terms substantially no less advantageous to the Indemnified Parties than such existing insurance; provided, that after the third year after the Effective Time, the Surviving Corporation shall not be required to pay annual premiums in excess of 250% of the last annual premium paid by the Company prior to the date hereof (the amount of which premium is set forth in the Company Disclosure Letter), but in such case shall purchase as much coverage as reasonably practicable for such amount. (d) The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the certificate of incorporation or bylaws of the Company or any of its Subsidiaries, under the DGCL or otherwise. (e) In the event Merger Partner, the Surviving Corporation, AEGON USA or any of their respective successors or assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving corporation or entity of in such consolidation or ~~merger,~~ merger or (ii) transfers all or substantially all of its properties and assets to any ~~Person~~person, ~~then,~~ then and in ~~each~~ either such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ Merger Partner or the Surviving Corporation, or AEGON USA, as the case may be, shall ~~succeed to~~ assume the obligations set forth in this Section ~~5.7. Parent~~ 5.13. (f) This Section 5.13 shall ~~cause~~ survive the Closing and is intended to benefit Company, the Surviving Corporation and each of the Indemnified Parties and his or her heirs and representatives (each of whom shall be entitled to enforce this Section 5.13 against Merger Partner, AEGON USA or the Surviving Corporation to ~~perform~~ the extent specified herein) and shall be binding on all successors and assigns of ~~the obligations of~~ Merger Partner, AEGON USA and the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other personCorporation.

Appears in 1 contract

Samples: Merger Agreement (Transamerica Corp)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs, each of ~~Parent~~ Opexa and the Surviving ~~Corporation~~Corporation shall, jointly and severally, ~~shall~~ indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Opexa or ~~the Company and their respective Subsidiaries, respectively~~ Acer (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Opexa or ~~of the Company~~Acer, whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under ~~applicable Law~~the DGCL or TBOC for directors or officers of Delaware corporations or Texas corporations, as applicable. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of ~~Parent~~ Opexa and the Surviving Corporation, jointly and severally, upon receipt by ~~Parent~~ Opexa or the Surviving Corporation from the D&O Indemnified Party of a request therefor; ~~provided~~ provided, that any ~~such~~ person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, ~~to the extent then required by the DGCL~~as applicable, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The ~~provisions~~ certificate of formation/incorporation and bylaws of each of Opexa and the Surviving Corporation shall contain, and Opexa shall cause the certificate of incorporation and bylaws of the ~~Organizational Documents of Parent~~ Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent that~~ each of Opexa and Acer than are presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent~~ formation/incorporation and bylaws of Opexa and Acer, as ~~of the date of this Agreement~~ applicable, which provisions shall not be amended, modified or repealed for a period of six (6) ~~years~~ years’ time from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this AgreementOpexa or Acer. (c) ~~From and after~~ Prior to the Effective Time, Opexa shall purchase (iand for the avoidance of doubt, the fees and expenses to be paid by Opexa shall reduce the Net Cash) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability a “tail” insurance ~~policies,~~ policy with an effective date as of the Closing Date, ~~on commercially available terms and conditions and with coverage limits customary~~ which shall remain effective for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years ~~from~~ following the Closing Date, at least the same coverage and ~~after~~ amounts and containing the ~~Effective Time with respect to any claim related to any period of time at or prior~~ same terms and conditions that are not less favorable to the ~~Effective Time. During the term of the~~ D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directorsIndemnified Parties. (ed) ~~From and after the Effective Time, Parent~~ Opexa shall pay all reasonable expenses, including reasonable attorneys’ fees, that ~~are~~ may be incurred by the persons referred to in this Section 5.7 in connection with their ~~successful~~ enforcement of ~~the~~ their rights provided ~~to such persons~~ in this Section 5.7. (fe) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the ~~current and former officers and directors of Parent and the Company~~ D&O Indemnified Parties by ~~Law~~law, charter, statute, bylaw or agreement~~, and~~ . The obligations of Opexa under this Section 5.7 shall ~~operate for~~ survive the ~~benefit of, and shall be enforceable by, each~~ consummation of the D&O Indemnified Parties, their heirs and their representatives. (g) From and after the Effective Time, in the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person Merger and shall not be ~~the continuing~~ terminated or ~~surviving corporation or entity of~~ modified in such ~~consolidation or merger, or (ii) transfers all or substantially all of its properties and assets~~ a manner as to adversely affect any ~~Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed~~ Indemnified Party to the obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in whom this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, applies without the ~~prior written~~ consent of such affected D&O Indemnified Party ~~or other person~~(it being expressly agreed that the D&O Indemnified Parties to whom this

Appears in 1 contract

Samples: Merger Agreement (Opexa Therapeutics, Inc.)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of ~~Parent~~ Zordich and the Surviving ~~Corporation, jointly and severally,~~ Corporation shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Zordich or the ~~Company and their respective Subsidiaries~~Company, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Zordich or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under ~~applicable Law~~the DGCL. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of ~~Parent~~ Zordich and the Surviving Corporation, jointly and severally, upon receipt by ~~Parent~~ Zordich or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to ~~Parent~~Zordich, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. Without otherwise limiting the D&O Indemnified Parties’ rights with regards to counsel, following the Effective Time, the D&O Indemnified Parties shall be entitled to continue to retain Xxxxxxx Procter LLP or such other counsel selected by the D&O Indemnified Parties. (b) The provisions of the ~~Organizational Documents~~ certificate of ~~Parent~~ incorporation and bylaws of Zordich with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent~~ Zordich that are presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~ Zordich shall not be amended, modified or repealed for a period of six ~~(6)~~ years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of ~~Parent~~Zordich, unless such modification is required by applicable Law. The ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation shall contain, and ~~Parent~~ Zordich shall cause the ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~Zordich. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) ~~Parent~~ Zordich shall fulfill and honor in all respects the obligations of ~~Parent~~ Zordich to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under ~~Parent~~Zordich’s Organizational Documents and pursuant to any indemnification agreements between ~~Parent~~ Zordich and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, ~~Parent~~ Zordich shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to ~~Parent~~Zordich. In addition, ~~Parent~~ Zordich shall purchase, prior to the Effective Time, a ~~six (6)-year~~ six-year prepaid “D&O tail policy” ~~(the “D&O Tail Policy”)~~ for the non-cancellable extension of the directors’ and officers’ liability coverage of ~~Parent~~Zordich’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six ~~(6)~~ years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective ~~Time. During~~ Time with terms, conditions, retentions and limits of liability that are no less favorable than the ~~term~~ coverage provided under Zordich’s existing policies as of the ~~D&O Tail Policy~~date of this Agreement with respect to any actual or alleged error, ~~Parent shall not take~~ misstatement, xxxxxxxxxx xxxxxxxxx, xxx, omission, neglect, breach of duty or any ~~action following~~ matter claimed against a director or officer of Zordich by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time (including in connection with this Agreement or the Contemplated Transactions or in connection with Zordich’s initial public offering of shares of Zordich Common Stock). Notwithstanding the foregoing, in satisfying its obligation under this Section 6.9(d), neither Zordich nor the Surviving Corporation shall be obligated to pay annual premiums in excess of 300% of the amount per annum Zordich paid in its last full fiscal year prior to the date hereof for such insurance (the “Current Premium”) and if such premiums for such insurance would at any time exceed 300% of the Current Premium, then Zordich shall cause ~~the D&O Tail Policy~~ to be ~~cancelled or any provision therein~~ maintained policies of insurance that, in Zordich’s good faith judgment, provide the maximum coverage available at an annual premium equal to ~~be amended or waived in any manner that would adversely affect in any material respect~~ 300% of the ~~rights of their former and current officers and directors~~Current Premium. (e) From and after the Effective Time, ~~Parent~~ Zordich shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section ~~5.7~~ 6.9 in connection with their ~~successful~~ enforcement of the rights provided to such persons in this Section ~~5.7~~6.9. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 6.9 are intended to be in addition to the rights otherwise available to the current and former officers and directors of ~~Parent~~ Zordich and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) ~~From and after the Effective Time, in~~ In the event ~~Parent~~ Zordich or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or ~~merger,~~ merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ Zordich or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~6.9. ~~Parent~~ Zordich shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person6.9.

Appears in 1 contract

Samples: Merger Agreement (Zafgen, Inc.)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of ~~Parent~~ Threshold and the Surviving ~~Corporation~~Corporation shall, jointly and severally, ~~shall~~ indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Threshold or ~~the Company and their respective Subsidiaries, respectively~~ Molecular (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Threshold or ~~of the Company~~Molecular, whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under ~~applicable Law~~the DGCL for directors or officers of Delaware corporations. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of ~~Parent~~ Threshold and the Surviving Corporation, jointly and severally, upon receipt by ~~Parent~~ Threshold or the Surviving Corporation from the D&O Indemnified Party of a request therefor; ~~provided~~ provided, that any ~~such~~ person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, ~~to the extent then required by the DGCL~~as applicable, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The ~~provisions~~ certificate of incorporation and bylaws of each of Threshold and the Surviving Corporation shall contain, and Threshold shall cause the certificate of incorporation and bylaws of the ~~Organizational Documents of Parent~~ Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent that~~ each of Threshold and Molecular than are presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent~~ incorporation and bylaws of Threshold and Molecular, as applicable, which provisions (as well as the indemnification agreements between Threshold and Molecular, as applicable, and such D&O Indemnified Parties (as in effect as of the date of this ~~Agreement~~ Agreement) in the forms made available to the other Party as of the date of this Agreement) shall not be amended, modified or repealed for a period of six ~~(6) years~~ years’ time from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this AgreementThreshold or Molecular. (c) ~~From and after the Effective Time, (i) the Surviving Corporation~~ Threshold shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability purchase a “tail” insurance ~~policies,~~ policy with an effective date as of the Closing Date, ~~on commercially available~~ which shall remain effective for six years following the Closing Date, at least the same coverage and amounts and containing the same terms and conditions ~~and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior~~ that are not less favorable to the ~~Effective Time, a six (6)-year prepaid “tail policy” (the “~~D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directorsIndemnified Parties. (ed) ~~From and after the Effective Time, Parent~~ Threshold shall pay all reasonable expenses, including reasonable attorneys’ fees, that ~~are~~ may be incurred by the persons referred to in this Section 5.7 in connection with their ~~successful~~ enforcement of ~~the~~ their rights provided ~~to such persons~~ in this Section 5.7. (fe) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the ~~current and former officers and directors of Parent and the Company~~ D&O Indemnified Parties by ~~Law~~law, charter, statute, bylaw or agreement, . The obligations of Threshold under this Section 5.7 shall survive the consummation of the Merger and shall ~~operate for~~ not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 5.7 applies without the ~~benefit of~~consent of such affected D&O Indemnified Party (it being expressly agreed that the D&O Indemnified Parties to whom this Section 5.7 applies, as well as their heirs and representatives, shall be ~~enforceable by~~third party beneficiaries of this Section 5.7, each of whom may enforce the ~~D&O Indemnified Parties, their heirs and their representatives~~provisions of this Section 5.7). (gf) ~~From and after the Effective Time, in~~ In the event ~~Parent~~ Threshold or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any ~~Person~~person, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ Threshold or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.7. ~~Parent~~ Threshold shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person.

Appears in 1 contract

Samples: Merger Agreement (Threshold Pharmaceuticals Inc)

Indemnification of Officers and Directors. (a) All rights to indemnification by the Company existing in favor of those Persons who are directors and officers of the Company as of the Agreement Date (the "D&O Indemnified Persons") for their acts and omissions occurring prior to the Effective Time, as provided in the certificate of incorporation and bylaws of the Company (as in effect as of the Agreement Date) and as provided in the indemnification agreements between the Company and such D&O Indemnified Persons (as in effect as of the Agreement Date) in the forms made available by the Company to Parent prior to the Agreement Date (collectively, the "Indemnification Agreements"), shall survive the Merger and shall be observed by the Surviving Corporation to the fullest extent available and unless otherwise required under applicable Law for a period of six (6) years from the Effective Time, and any claim made requesting indemnification pursuant to such indemnification rights within such six (6)-year period shall continue to be subject to this Section 5.7(a) and the indemnification rights provided under this Section 5.7(a) until disposition of such claim. (b) From the Effective Time ~~through~~ until the sixth (6th) anniversary of the date on which the Effective Time occurs, ~~each of~~ Parent and the Surviving Corporation, jointly and severally, shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, fiduciary or agent of Parent or the Company and their respective Subsidiaries, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each caseCorporation shall, to the fullest extent permitted under applicable ~~Law. Each~~ Law and consistent with the Indemnification Agreements, indemnify, defend and hold harmless each D&O Indemnified ~~Party will be entitled to advancement~~ Person in his or her capacity as an officer or director of ~~expenses~~ the Company against all losses, claims, damages, liabilities, fees, expenses, judgments or fines incurred ~~in the defense of any~~ by such ~~claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the~~ D&O Indemnified ~~Party~~ Person in his or her capacity as an officer, director or employee of ~~a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent~~the Company, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of ~~matters occurring at~~ or ~~prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant~~ pertaining to any ~~indemnification provisions under Parent’s Organizational Documents~~ and ~~pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties~~all matters pending, ~~with respect to claims arising out of matters~~ existing or occurring at or prior to the Effective Time. (dc) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior Prior to the Effective Time, the Company shall purchase a six (6)-year ~~prepaid “tail policy”~~ "tail" policy (the ~~“D&O~~ "Tail Policy”") for the ~~non-cancellable extension~~ existing policy of ~~the~~ directors’ ' and officers’ ' liability ~~coverage of Parent’s existing directors’ and officers’~~ insurance ~~policies for a claims reporting or discovery period of at least six (6) years from and after~~ maintained by the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directorsCompany. (ed) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 shall survive the consummation of the Merger and are intended to be ~~in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate~~ for the benefit of, and ~~shall~~ will be enforceable by, each of the D&O Indemnified ~~Parties, their heirs~~ Persons and their ~~representatives. (g) From~~ successors, assigns and heirs. This Section 5.7 may not be amended, altered or repealed after the Effective Time, in the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, Time without the prior written consent of ~~such~~ the affected D&O Indemnified ~~Party or other person~~Person.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Millennial Media Inc.)

Indemnification of Officers and Directors. (a) From the First Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the First Effective Time occurs, each of Parent and the Surviving ~~Corporation, jointly and severally,~~ Company shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the First Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of Parent or the ~~Company and their respective Subsidiaries~~Company, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of Parent or of the Company, whether asserted or claimed prior to, at or after the First Effective Time, in each case, to the fullest extent permitted under ~~applicable Law~~the DGCL and the DLLCA. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving ~~Corporation~~Company, jointly and severally, upon receipt by Parent or the Surviving ~~Corporation~~ Company from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the ~~DGCL~~DGCL and the DLLCA, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the ~~Organizational Documents~~ certificate of incorporation and bylaws of Parent with respect to indemnification, advancement of ~~expenses~~ expenses, and exculpation of present and former directors and officers of Parent that are presently set forth in the ~~Organizational Documents~~ certificate of incorporation and bylaws of Parent ~~as of the date of this Agreement~~ shall not be amended, ~~modified~~ modified, or repealed for a period of six ~~(6)~~ years from the First Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the First Effective Time, were officers or directors of Parent, unless such modification is required by applicable Law. The ~~Organizational Documents~~ certificate of formation and bylaws of the Surviving ~~Corporation~~ Company shall contain, and Parent shall cause the ~~Organizational Documents~~ certificate of formation and limited liability company agreement of the Surviving ~~Corporation~~ Company to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~Parent. (c) From and after the First Effective Time, (i) the Surviving ~~Corporation~~ Company shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the First Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the First Effective Time. (d) From and after the First Effective ~~Time~~Time for a period of six years, Parent shall maintain in effect directors’ and officers’ liability insurance ~~policies, with an effective date as of~~ covering those Persons who are currently covered by (x) the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the Company’s directors’ and officers’ liability insurance policies on terms not less favorable than the terms of such current insurance coverage, except that in no event shall Parent be required to pay an aggregate premium for such insurance in excess of 300% of the annual premium payable in the aggregate by the Company for such insurance policy for the year ended December 31, 2022; provided, however, that (i) Parent may cause coverage ~~of Parent’s existing~~ to be extended under the current directors’ and officers’ liability insurance ~~policies for~~ by obtaining a ~~claims reporting or discovery period~~ six-year “tail” policy containing terms not materially less favorable than the terms of ~~at least six (6) years from and after the Effective Time~~ such current insurance coverage with respect to ~~any claim related to any period of time~~ claims existing or occurring at or prior to the ~~Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the~~ First Effective Time ~~to cause~~ (the “D&O ~~Tail Policy~~ Tail”) and (ii) if any claim is asserted or made within such six-year period, any insurance required to be ~~cancelled or any provision therein to~~ maintained under this Section 5.4(d) shall be ~~amended or waived~~ continued in ~~any manner that would adversely affect in any material~~ respect of such claim until the ~~rights of their former and current officers and directors~~final disposition thereof. (e) From and after the First Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section ~~5.7~~ 5.4 in connection with their ~~successful~~ enforcement of the rights provided to such persons in this Section ~~5.7~~5.4. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 5.4 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their ~~representatives~~Representatives and all such persons are express third party beneficiaries of this Agreement for purposes of this Section 5.4. (g) ~~From and after the Effective Time, in~~ In the event Parent or the Surviving ~~Corporation~~ Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or ~~merger,~~ merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving ~~Corporation~~Company, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~5.4. Parent shall cause the Surviving ~~Corporation~~ Company to perform all of the obligations of the Surviving ~~Corporation~~ Company under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person5.4.

Appears in 1 contract

Samples: Merger Agreement (Ikena Oncology, Inc.)

Indemnification of Officers and Directors. (a) ~~From~~ For a period of six years from and after the ~~Effective Time through the sixth~~ Closing Date, Parent agrees to indemnify (~~6th~~including advancement of expenses) ~~anniversary of the date on which the Effective Time occurs, each of Parent and the Surviving Corporation, jointly and severally, shall indemnify~~ and hold harmless ~~each person who is now, or has been at any time prior~~ all past and present officers and directors of the Company (the "INDEMNIFIED PERSONS") to the ~~date hereof, or who becomes prior to~~ same extent that the ~~Effective Time, a director, officer, fiduciary or agent of Parent or~~ officers and directors are indemnified by the Company and their respective Subsidiaries, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement ~~shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior~~ pursuant to the ~~Effective Time~~Company's Articles of Incorporation and Bylaws, ~~were officers~~ employment agreements or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of indemnification agreements identified on the Company ~~to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions~~ Disclosure Schedule or under ~~the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at~~ applicable Law for acts or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time omissions which occurred at or prior to the Effective Time. ~~During the term~~ The Company hereby represents to Parent that no claim for indemnification has been made by any director or officer of the ~~D&O Tail Policy~~Company and, ~~Parent shall not take~~ to the knowledge of the Company, no facts exist that would serve as a valid legal basis for any ~~action following~~ such claim for indemnification. 72 (b) From the Effective Time ~~to cause~~ until the ~~D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights~~ sixth anniversary of ~~their former and current officers and directors. (e) From and after~~ the Effective Time, Parent shall ~~pay all expenses~~maintain in effect, ~~including reasonable attorneys’ fees, that are incurred by~~ for the ~~persons referred to in this Section 5.7 in connection with their successful enforcement~~ benefit of the ~~rights provided~~ Indemnified Persons with respect to ~~such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts~~ claims arising from facts or ~~omissions occurring at or~~ events that occurred prior to the Effective Time, ~~whether asserted or claimed prior to, at or after~~ the ~~Closing, now~~ existing ~~in favor~~ policy of directors' and officers' liability insurance maintained by Parent for the benefit of its current officers and directors as of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions date of this Agreement (the "EXISTING POLICY") or a new policy providing comparable coverage containing terms and conditions, taken as a whole, that are no less advantageous to the Indemnified Persons than the terms of conditions in the Existing Policy would be to the Indemnified Persons if such policy covered such persons; PROVIDED, HOWEVER, that Parent shall not be required to pay annual premiums for the Existing Policy (or for any combination of the Existing Policy and any substitute or additional policies) in excess of 150% of the annual premium payable under the Existing Policy as of the date hereof. In the event any future annual premiums for the Existing Policy (or any substitute policies) exceed 150% of such current annual premium, Parent shall be entitled to reduce the amount of coverage of the Existing Policy (or any substitute policies) to the amount of coverage that can be obtained for a premium equal to 150% of such current annual premium. (c) This Section ~~5.7 are~~ 6.12 is intended to be ~~in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate~~ for the benefit of, and shall be enforceable by, ~~each of~~ the ~~D&O Indemnified Parties,~~ officers and directors and their heirs and ~~their representatives. (g) From~~ personal representatives and ~~after~~ shall be binding on the ~~Effective Time, in~~ Surviving Corporation and its successors and assigns. In the event ~~Parent~~ the Company or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving corporation or entity of in such consolidation or ~~merger,~~ merger or (ii) transfers all or substantially all of its properties and assets to any ~~Person~~person, then, and in each ~~such~~ case, ~~proper provision~~ Parent shall ~~be made so~~ use best efforts to ensure that the successors and assigns of ~~Parent~~ the Company or the Surviving Corporation, as the case may be, ~~shall succeed~~ are subject to and honor the indemnification obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person6.12.

Appears in 1 contract

Samples: Merger Agreement (Captiva Software Corp/Ca)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of ~~Parent~~ Apricus and the Surviving ~~Corporation, jointly and severally,~~ Corporation shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Apricus or the ~~Company and their respective Subsidiaries~~Company, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Apricus or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in ~~each case~~the case of the Company, to the fullest extent permitted under ~~applicable Law~~the DGCL for directors or officers of Delaware corporations and, in the case of Apricus, to the fullest extent permitted under the NRS for directors and officers of Nevada corporations, as applicable. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of ~~Parent~~ Apricus and the Surviving Corporation, jointly and severally, upon receipt by ~~Parent~~ Apricus or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to ~~Parent~~Apricus, to the extent then required by the ~~DGCL~~NRS, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the ~~Organizational Documents~~ articles of ~~Parent~~ incorporation and bylaws of Apricus with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent~~ Apricus that are presently set forth in the ~~Organizational Documents~~ articles of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~ Apricus shall not be amended, modified or repealed for a period of six ~~(6)~~ years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this AgreementApricus. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) ~~Parent~~ Apricus shall fulfill and honor in all respects the obligations of ~~Parent~~ Apricus to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under ~~Parent’s~~ Apricus’ Organizational Documents and pursuant to any indemnification agreements between ~~Parent~~ Apricus and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, ~~Parent~~ Apricus shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to ~~Parent~~Apricus. In addition, ~~Parent~~ Apricus shall purchase, prior to the Effective Time, a ~~six (6)-year~~ six-year prepaid “tail policy” ~~(the “D&O Tail Policy”)~~ for the non-cancellable extension of the directors’ and officers’ liability coverage of ~~Parent’s~~ Apricus’ existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six ~~(6)~~ years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective ~~Time. During~~ Time with terms, conditions, retentions and limits of liability that are no less favorable than the ~~term~~ coverage provided under Apricus’ existing policies as of the ~~D&O Tail Policy~~date of this Agreement with respect to any actual or alleged error, ~~Parent shall not take~~ misstatement, misleading statement, act, omission, neglect, breach of duty or any ~~action following~~ matter claimed against a director or officer of Apricus by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time ~~to cause~~ (including in connection with this Agreement or the ~~D&O Tail Policy to be cancelled~~ Contemplated Transactions or ~~any provision therein to be amended or waived~~ in ~~any manner that would adversely affect in any material respect the rights~~ connection with Apricus’ initial public offering of ~~their former and current officers and directors~~shares of Apricus Common Stock). (e) From and after the Effective Time, ~~Parent~~ Apricus shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section ~~5.7~~ 5.8 in connection with their successful enforcement of the rights provided to such persons in this Section ~~5.7~~5.8. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 5.8 are intended to be in addition to the rights otherwise available to the current and former officers and directors of ~~Parent~~ Apricus and the Company by ~~Law~~law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) ~~From and after the Effective Time, in~~ In the event ~~Parent~~ Apricus or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ Apricus or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~5.8. ~~Parent~~ Apricus shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person5.8.

Appears in 1 contract

Samples: Merger Agreement (Apricus Biosciences, Inc.)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of Parent and the Surviving ~~Corporation~~Corporation shall, jointly and severally, ~~shall~~ indemnify and hold ~~harmless~~ harmless, to the fullest extent not prohibited by applicable law, each person who was or is or becomes, or is threatened to be made, a party to or witness or other participant in, or was or is or becomes obligated to furnish or furnishes documents in response to a subpoena or otherwise in connection with any threatened, pending or completed claim, action, suit, proceeding, arbitration or alternative dispute resolution mechanism, investigation, inquiry, administrative hearing, appeal or any other actual, threatened or completed proceeding, whether brought in the right of a Covered Party (as defined below) or otherwise and whether of a civil (including intentional or unintentional tort claims), criminal, administrative, arbitrative or investigative nature (each, an "Indemnification Event") by reason of the fact that such person is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent or~~ the Company ~~and their respective Subsidiaries, respectively~~ or any of its Subsidiaries (the ~~“D&O Indemnified~~ "Covered Parties”"), ~~against~~ from (x) any and all direct and indirect fees and costs, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating, printing and binding costs, telephone charges, postage and delivery service fees and all other disbursements or expenses of any type or nature whatsoever reasonably incurred by a Covered Party (including reasonable attorneys' fees), and (y) any and all losses, claims, ~~losses~~damages, liabilities, ~~damages,~~ judgments, ~~fines~~ fines, penalties, settlement payments, awards and ~~reasonable fees, costs and expenses, including attorneys’ fees and disbursements,~~ amounts of any type whatsoever incurred by such Covered Party in connection with or arising from any ~~claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative,~~ Indemnification Event arising out of or pertaining to the fact that the ~~D&O Indemnified~~ Covered Party is or was ~~a director, officer, fiduciary~~ an officer or ~~agent of Parent or~~ director of the ~~Company~~Company or any of its Subsidiaries (including the taking of any action or the failure to take any action as a director or officer of any Acquired Corporation in connection with the Contemplated Transactions), whether asserted or claimed prior to, at or after the Effective Time~~, in each case, to the fullest extent permitted under applicable Law~~. Each ~~D&O Indemnified~~ Covered Party will be ~~entitled~~ entitled, subject to applicable Legal Requirements, to advancement of expenses incurred in the defense of or other participation in any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving ~~Corporation, jointly and severally, upon~~ Corporation within ten business days of receipt by Parent or the Surviving Corporation from the ~~D&O Indemnified~~ Covered Party of a request therefor; ~~provided~~ provided, that any ~~such~~ person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, to the extent ~~then~~ required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable to the Covered Parties with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers ~~as those~~ of the Company and its Subsidiaries than are presently set forth in the Organizational Documents of ~~Parent as of~~ the ~~date of this Agreement~~Company and its Subsidiaries. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) From and after the Effective Time, in the event that Parent or the Surviving Corporation or any of ~~their respective~~ its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or ~~merger,~~ merger or (ii) transfers or conveys all or substantially all of its stock, properties ~~and~~ or assets to any Person, then, and in each such case, proper provision shall be made so that the successors ~~and~~ or assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~6.5. (d) The Company has purchased a "tail" policy under the Company's existing directors' and officers' liability insurance policy. Until the sixth anniversary of the Effective Time, Parent shall cause the ~~Surviving Corporation~~ Company (i) to ~~perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth~~ maintain such "tail" policy in ~~this Section 5.7 shall~~ full force and effect, (ii) not ~~be terminated, amended~~ to amend or otherwise ~~modified~~ modify such "tail" coverage or take any action that would result in ~~any manner that adversely affects any D&O Indemnified Party~~the cancellation, termination, amendment or ~~any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent~~ modification of such ~~affected D&O Indemnified Party or other person~~"tail" policy and (ii) to continue to honor its obligations under such "tail" coverage.

Appears in 1 contract

Samples: Merger Agreement (Hammons John Q Hotels Inc)

Appears in 1 contract

Samples: Merger Agreement (Cara Therapeutics, Inc.)

Indemnification of Officers and Directors. (a) ~~From~~ For a period of six (6) years from the Effective Time, Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time ~~through~~ (whether asserted or claimed prior to, at or after the Effective Time) now existing in favor of the current or former directors or officers of any Acquired Corporation and any indemnification or other similar agreements of any Acquired Corporation set forth on Section 6.5(a) of the Company Disclosure Schedule, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms, and Parent shall cause the Acquired Corporations to perform their obligations thereunder. Without limiting the foregoing, during the period commencing at the Effective Time and ending on the sixth ~~(6th)~~ anniversary of the ~~date on which~~ Effective Time, Parent shall cause the ~~Effective Time occurs~~Surviving Corporation and its Subsidiaries to, ~~each of Parent~~ and the Surviving ~~Corporation~~Corporation agrees that it will, ~~jointly and severally, shall~~ indemnify and hold harmless each ~~person~~ individual who is ~~now, or has been at any time prior to~~ as of the date ~~hereof~~of this Agreement, or who becomes prior to the Effective Time, a ~~director~~director or officer of any Acquired Corporation or who is as of the date of this Agreement, ~~officer~~or who thereafter commences prior to the Effective Time, ~~fiduciary~~ serving at the request of any Acquired Corporation as a director or ~~agent~~ officer of ~~Parent or the Company and their respective Subsidiaries, respectively~~ another Person (the “~~D&O~~ Indemnified ~~Parties~~Persons”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, ~~suit, proceeding~~ suit or ~~investigation~~proceeding, whether civil, criminal, administrative or ~~investigative~~investigative (including with respect to matters existing or occurring at or prior to the Effective Time, including this Agreement and the transactions and actions contemplated hereby), arising out of or pertaining to the fact that the ~~D&O~~ Indemnified ~~Party~~ Person is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ any Acquired Corporation or is or was serving at the request of ~~the Company~~any Acquired Corporation as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under applicable ~~Law~~Legal Requirements. ~~Each D&O~~ In the event of any such claim, action, suit or proceeding, (x) each Indemnified ~~Party~~ Person will be entitled to advancement of expenses incurred in the defense of any such claim, action, ~~suit,~~ suit or proceeding ~~or investigation~~ from ~~each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or~~ the Surviving Corporation ~~from~~ or its Subsidiaries, as applicable, in accordance with the ~~D&O Indemnified Party~~ organizational documents and any indemnification or other similar agreements of ~~a request therefor~~the Surviving Corporation or its Subsidiaries, as applicable, as in effect on the date of this Agreement; provided that any ~~such person~~ Indemnified Person to whom expenses are advanced provides an undertaking to ~~Parent, to the extent then required by the DGCL, to~~ repay such advances if it is ultimately determined by final adjudication that such ~~person~~ Indemnified Person is not entitled to ~~indemnification~~indemnification and (y) the Surviving Corporation and its Subsidiaries, as applicable, shall reasonably cooperate in the defense of any such matter. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for For a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective ~~Time~~ Time, Parent and the Surviving Corporation shall either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance maintained by or for the benefit of the Acquired Corporations or provide substitute policies for the Acquired Corporations and their current and former directors and officers who are currently covered by the directors’ and officers’ liability insurance coverage currently maintained by or for the benefit of the Acquired Corporations, in either case, of not less than the existing coverage and having other terms not less favorable in the aggregate to the insured persons than the directors’ and officers’ liability insurance coverage currently maintained by or for the benefit of the Acquired Corporations with respect to ~~any claim related to any period of time~~ claims arising from facts or events that occurred at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after before the Effective Time, except that in no event shall Parent ~~shall~~ or the Surviving Corporation be required to pay ~~all expenses, including reasonable attorneys’ fees, that are incurred~~ with respect to such insurance policies more than 300% of the aggregate annual premium most recently paid by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or Acquired Corporations prior to the date of this Agreement (the “Maximum Amount”), and if the Surviving Corporation is unable to obtain the insurance required by this Section 6.5(b) it shall obtain as much comparable insurance as possible for the years within such six (6)-year period for a premium equal to the Maximum Amount. In lieu of such insurance, prior to the Closing Date the Company may (through an insurance broker approved by Parent (such approval not to be unreasonably withheld, delayed or conditioned)), and, if prior to the Closing the Company has not, Parent may, purchase a “tail” directors’ and officers’ liability insurance policy for the Acquired Corporations and their current and former directors and officers who are currently covered by the directors’ and officers’ liability insurance coverage currently maintained by or for the benefit of the Acquired Corporations, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance coverage currently maintained by or for the benefit of the Acquired Corporations with respect to claims arising from facts or events that occurred at or before the Effective Time~~, whether asserted or claimed prior to, at or after~~ ; provided that in no event shall the ~~Closing, now existing in favor~~ cost of any such tail policy exceed the ~~current or former directors, officers or employees, as~~ Maximum Amount. Parent and the ~~case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement~~ Surviving Corporation shall ~~survive the Merger and shall continue~~ maintain such policies in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and ~~shall operate for~~ continue to honor the ~~benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives~~obligations thereunder. (gc) ~~From and after the Effective Time, in~~ In the event ~~Parent or the Surviving~~ that any Acquired Corporation or any of ~~their respective~~ its successors or assigns (i) consolidates with or merges into any other Person and ~~shall~~ is not be the continuing or surviving corporation or ~~entity~~ Entity of such consolidation or ~~merger,~~ merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, the Acquired Corporation, as applicable, shall cause proper provision ~~shall~~ to be made so that the successors and assigns of ~~Parent or the Surviving Corporation, as the case may be, shall succeed to~~ such Acquired Corporation assume the obligations set forth in this Section ~~5.7. Parent~~ 6.5. (d) The provisions of this Section 6.5 (i) shall ~~cause~~ survive the ~~Surviving Corporation~~ acceptance of Shares for payment pursuant to ~~perform all~~ the Offer and the consummation of the ~~obligations of~~ Merger and (ii) are intended to be for the ~~Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not~~ benefit of, and will be ~~terminated~~enforceable by, ~~amended~~ each indemnified or ~~otherwise modified in any manner that adversely affects any D&O~~ insured party (including the Indemnified ~~Party~~Persons), his or ~~any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs~~ her heirs, successors, assigns and representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification, advancement of expenses, exculpation or contribution that any such Person may have by contract or otherwise. Unless required by applicable Legal Requirement, this Section 6.5 may not be amended, altered or repealed after the Offer Acceptance Time in such a manner as to adversely affect the rights of any Indemnified Person or any of their successors, assigns or heirs without the prior written consent of ~~such~~ the affected ~~D&O~~ Indemnified ~~Party or other person~~Person.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Array Biopharma Inc)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of ~~Parent~~ TapImmune and the Surviving ~~Corporation,~~ Corporation shall jointly and ~~severally, shall~~ severally indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ TapImmune or ~~the Company and their respective Subsidiaries, respectively~~ Marker (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ TapImmune or ~~of the Company~~Marker, whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under ~~applicable Law~~the DGCL for directors or officers of Delaware corporations. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of ~~Parent~~ TapImmune and the Surviving Corporation, jointly and severally, upon receipt by ~~Parent~~ TapImmune or the Surviving Corporation from the D&O Indemnified Party of a request therefor; ~~provided~~ provided, that any ~~such~~ person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, ~~to the extent then required by the DGCL~~as applicable, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) ~~The provisions~~ From the Effective Time, the certificate of incorporation and bylaws of each of TapImmune and the Surviving Corporation shall contain, and TapImmune shall cause the certificate of incorporation and bylaws of the ~~Organizational Documents of Parent~~ Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent that~~ each of TapImmune and Marker than are presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent~~ incorporation and bylaws of TapImmune and Marker, as applicable, which provisions (as well as the indemnification agreements between TapImmune and Marker, as applicable, and such D&O Indemnified Parties (as in effect as of the date of this ~~Agreement~~ Agreement) in the forms made available to the other Party as of the date of this Agreement) shall not be amended, modified or repealed for a period of six ~~(6) years~~ years’ time from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of ~~Parent~~TapImmune or Marker. ~~The Organizational Documents~~ On or before the Effective Time, TapImmune will enter into written indemnification agreements with the then current officers and directors of ~~the Surviving Corporation shall contain~~TapImmune, and ~~Parent shall cause~~ any new directors who join the ~~Organizational Documents~~ TapImmune Board of Directors upon the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this AgreementClosing. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent TapImmune shall pay all reasonable expenses, including reasonable attorneys’ fees, that ~~are~~ may be incurred by the persons referred to in this Section ~~5.7~~ 5.5 in connection with their ~~successful~~ enforcement of ~~the~~ their rights provided ~~to such persons~~ in this Section ~~5.7~~5.5. (fd) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 5.5 are intended to be in addition to the rights otherwise available to the ~~current and former officers and directors of Parent and the Company~~ D&O Indemnified Parties by ~~Law~~law, charter, statute, bylaw or agreement, . The obligations of TapImmune under this Section 5.5 shall survive the consummation of the Merger and shall ~~operate for~~ not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 5.5 applies without the ~~benefit of~~consent of such affected D&O Indemnified Party (it being expressly agreed that the D&O Indemnified Parties to whom this Section 5.5 applies, as well as their heirs and Representatives, shall be ~~enforceable by~~third party beneficiaries of this Section 5.5, each of whom may enforce the ~~D&O Indemnified Parties, their heirs and their representatives~~provisions of this Section 5.5). (ge) ~~From and after the Effective Time, in~~ In the event ~~Parent~~ TapImmune or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or ~~entity~~ Entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ TapImmune or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~5.5. ~~Parent~~ TapImmune shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person5.5.

Appears in 1 contract

Samples: Merger Agreement (Tapimmune Inc.)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of ~~Parent~~ Pivot and the Surviving ~~Corporation~~Corporation shall, jointly and severally, ~~shall~~ indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Pivot or ~~the Company and their respective Subsidiaries, respectively~~ Merger Partner (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Pivot or ~~of the Company~~Merger Partner, whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under ~~applicable Law~~the DGCL for directors or officers of Delaware corporations. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of ~~Parent~~ Pivot and the Surviving Corporation, jointly and severally, upon receipt by ~~Parent~~ Pivot or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any ~~such~~ person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, to the extent then required by the ~~DGCL~~DGCL or the laws of the state of California, as applicable, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The ~~provisions~~ certificate of incorporation and bylaws of each of Pivot and the Surviving Corporation shall contain, and Pivot shall cause the certificate of incorporation and bylaws of the ~~Organizational Documents of Parent~~ Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent that~~ each of Pivot and Merger Partner than are presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent~~ incorporation and bylaws of Pivot and Merger Partner, as ~~of the date of this Agreement~~ applicable, which provisions shall not be amended, modified or repealed for a period of six ~~(6)~~ years time from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this AgreementPivot or Merger Partner. (c) ~~From and after the Effective Time~~Merger Partner shall purchase an insurance policy, ~~(i) the Surviving Corporation shall fulfill and honor in all respects the obligations~~ with an effective date as of the ~~Company to its D&O Indemnified Parties as of immediately prior to~~ Closing, which maintains in effect for six years from the Closing the current directors’ and officers’ liability insurance policies maintained by Merger Partner (provided that Pivot may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable); provided, however, that in no event shall Pivot be required to expend pursuant to ~~any indemnification provisions under the Company’s Organizational Documents and pursuant~~ this Section 5.7(c) more than an amount equal to ~~any indemnification agreements between the Company and~~ 200% of current annual premiums paid by Merger Partner for such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Timeinsurance. (d) ~~From and after the Effective Time, Parent~~ Pivot shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the ~~Closing Date~~Closing, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directorsPivot. (e) ~~From and after the Effective Time, Parent~~ Pivot shall pay all expenses, including reasonable attorneys’ fees, that ~~are~~ may be incurred by the persons referred to in this Section 5.7 in connection with their ~~successful~~ enforcement of ~~the~~ their rights provided ~~to such persons~~ in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of ~~Parent~~ Pivot and ~~the Company~~ Merger Partner by ~~Law~~law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) ~~From and after the Effective Time, in~~ In the event ~~Parent~~ Pivot or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any ~~Person~~person, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ Pivot or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.7. ~~Parent~~ Pivot shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person.

Appears in 1 contract

Samples: Merger Agreement (Novacea Inc)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of ~~Parent~~ Celladon and the Surviving ~~Corporation~~Corporation shall, jointly and severally, ~~shall~~ indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Celladon or ~~the Company and their respective Subsidiaries, respectively~~ Eiger (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Celladon or ~~of the Company~~Eiger, whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under ~~applicable Law~~the DGCL for directors or officers of Delaware corporations. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of ~~Parent~~ Celladon and the Surviving Corporation, jointly and severally, upon receipt by ~~Parent~~ Celladon or the Surviving Corporation from the D&O Indemnified Party of a request therefor; ~~provided~~ provided, that any ~~such~~ person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, to the extent then required by the DGCL, as applicable, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The ~~provisions~~ Certificate of Incorporation and Bylaws of each of Celladon and the Surviving Corporation shall contain, and Celladon shall cause the Certificate of Incorporation and Bylaws of the ~~Organizational Documents of Parent~~ Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent that~~ each of Celladon and Eiger than are presently set forth in the ~~Organizational Documents~~ Certificate of ~~Parent~~ Incorporation and Bylaws of Celladon and Eiger, as ~~of the date of this Agreement~~ applicable, which provisions shall not be amended, modified or repealed for a period of six ~~(6) years~~ years’ time from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this AgreementCelladon or Eiger. (c) ~~From and after the Effective Time, (i) the Surviving Corporation~~ Celladon shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability purchase an insurance ~~policies,~~ policy with an effective date as of the Closing ~~Date, on commercially available terms and conditions and with coverage limits customary~~ which maintains in effect for ~~U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to~~ six years from the ~~Effective Time, a six (6)-year prepaid “tail policy” (~~Closing the ~~“D&O Tail Policy”) for the non-cancellable extension of the~~ current directors’ and officers’ liability ~~coverage of Parent’s existing directors’ and officers’~~ insurance policies ~~for a claims reporting or discovery period~~ maintained by Celladon (provided that Celladon may substitute therefor policies of at least ~~six (6) years from~~ the same coverage containing terms and ~~after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall~~ conditions that are not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directorsmaterially less favorable). (ed) ~~From and after the Effective Time, Parent~~ Celladon shall pay all expenses, including reasonable attorneys’ fees, that ~~are~~ may be incurred by the persons referred to in this Section 5.7 in connection with their ~~successful~~ enforcement of ~~the~~ their rights provided ~~to such persons~~ in this Section 5.7. (fe) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of ~~Parent~~ Celladon and ~~the Company~~ Eiger by ~~Law~~law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (gf) ~~From and after the Effective Time, in~~ In the event ~~Parent~~ Celladon or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any ~~Person~~person, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ Celladon or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.7. ~~Parent~~ Celladon shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person.

Appears in 1 contract

Samples: Merger Agreement (Celladon Corp)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs, each of Parent and the Surviving Corporation, jointly and severally, shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, fiduciary or agent of Parent or the Company and their respective Subsidiaries, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the Organizational Documents of Parent with respect All rights to indemnification, advancement of ~~expenses~~ expenses, and exculpation by the Company existing (the “Indemnification Obligations”) in favor of ~~present and former~~ those Persons who are directors ~~and~~ or officers of ~~Parent that are set forth in~~ the ~~Organizational Documents of Parent~~ Company as of the date of this Agreement or have been directors or officers of the Company in the past (collectively, the “Indemnified Persons”) for their acts and omissions occurring prior to the Effective Time, as provided in the Organizational Documents of the Company (as in effect as of the date of this Agreement) or in any indemnification agreements between the Company and said Indemnified Persons that was made available to Parent (as in effect as of the date of this Agreement) shall survive the Effective Time and shall not be amended, repealed, or otherwise modified ~~or repealed~~ in any manner that would adversely affect the rights thereunder of any Indemnified Person, and shall be observed and maintained by the Surviving Corporation and its Subsidiaries to the fullest extent available under applicable Law for a period of six (6) years from the Effective ~~Time in a manner that would adversely affect~~ Time, and any claim made pursuant to such rights within such six-year period shall continue to be subject to this Section 5.7(a) and the rights ~~thereunder~~ provided under this Section 5.7(a) until disposition of ~~individuals who, at or prior to~~ such claim. (b) From the Effective ~~Time~~Time until the six-year anniversary of the Closing Date, ~~were officers or directors of Parent. The Organizational Documents of~~ Parent and the Surviving Corporation ~~shall contain~~(together with their successors and assigns, the “Indemnifying Parties”) shall, to the fullest extent permitted under Law and ~~Parent shall cause~~ the Company’s Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in ~~the Organizational Documents of Parent~~ effect as of the date of this Agreement~~. (c) From~~ , indemnify and ~~after the Effective Time, (i) the Surviving Corporation shall fulfill and honor~~ hold harmless each Indemnified Person in ~~all respects the obligations~~ his or her capacity as an officer or director of the Company against all losses, claims, damages, liabilities, fees, expenses, judgments, or fines incurred by such Indemnified Person due to ~~its D&O~~ such Indemnified ~~Parties~~ Person’s capacity as an officer or director of ~~immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between~~ the Company ~~and such D&O Indemnified Parties~~in connection with any pending or threatened Legal Proceeding based on, ~~with respect to claims~~ arising out of, or relating to, in whole or in part, the fact that such Indemnified Person is or was a director or officer of ~~matters occurring~~ the Company at or prior to the Effective Time and ~~(ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant~~ pertaining to any ~~indemnification provisions under Parent’s Organizational Documents~~ and ~~pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties~~all matters pending, ~~with respect to claims arising out of matters occurring at~~ existing, or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the ~~Closing~~Effective Time, ~~now existing~~ including any such matter arising under any claim with respect to the Transactions. Without limiting the foregoing, from the Effective Time until the six-year anniversary of Closing Date, the Indemnifying Parties shall also, to the fullest extent permitted under applicable Law, advance reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Indemnified Persons in connection with matters for which such Indemnified Persons are eligible to be indemnified pursuant to this Section 5.7(b) within twenty (20) business days after receipt by Parent of a written request for such advance, subject to the execution by such Indemnified Persons of appropriate undertakings in favor of the ~~current~~ Indemnifying Parties to repay such advanced costs and expenses if it is ultimately determined in a final and nonappealable judgment of a court of competent jurisdiction that such Indemnified Person is not entitled to be indemnified under this Section 5.7(b) or ~~former directors~~under applicable Law or the Company’s Organizational Documents or indemnification agreement at the time of this Agreement. (c) Any Indemnified Person wishing to claim indemnification under this Section 5.7 upon learning of any such Legal Proceeding, ~~officers or employees~~shall promptly notify Parent thereof in writing, as but the ~~case may be, of~~ failure to so notify shall not relieve Parent or the Company ~~as provided in their respective Organizational Documents or in~~ of any ~~agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended~~ liability it may have to ~~be in addition~~ such Indemnified Person except to the ~~rights otherwise available~~ extent such failure prejudices the Indemnifying Party. In the event of any Legal Proceeding: (i) Parent or the Company shall have the right to assume the defense thereof (it being understood that by electing to assume the defense thereof, neither Parent nor the Company will be deemed to have waived any right to object to the ~~current~~ Indemnified Person’s entitlement to indemnification hereunder with respect thereto or assumed any liability with respect thereto), except that if Parent or the Company elects not to assume such defense or legal counsel for the Indemnified Person advises that there are issues which raise conflicts of interest between Parent or the Company and ~~former officers~~ the Indemnified Person, the Indemnified Person may retain legal counsel satisfactory to them, and ~~directors~~ Parent or the Company shall pay all reasonable and documented fees and expenses of such legal counsel for the Indemnified Person promptly as statements therefor are received; provided however, that Parent and the Company ~~by Law~~shall be obligated pursuant to this Section 5.7 to pay for only one (1) firm of legal counsel for all Indemnified Persons in any jurisdiction unless the use of one (1) legal counsel for such Indemnified Persons would present such legal counsel with a conflict of interest (provided, ~~charter, statute, bylaw~~ that the fewest number of legal counsels necessary to avoid conflicts of interest shall be used); (ii) the Indemnified Persons shall cooperate in the defense of any such matter if Parent or ~~agreement~~the Company elects to assume such defense, and Parent and the Company shall ~~operate~~ cooperate in the defense of any such matter if Parent or the Company elects not to assume such defense; (iii) the Indemnified Persons shall not be liable for any settlement effected without their prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) if Parent or the ~~benefit of~~Company elects to assume such defense and Parent and the Company shall not be liable for any settlement effected without their prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) if Parent or the Company elects not to assume such defense; (iv) Parent and the Company shall not have any obligation hereunder to any Indemnified Person if and when a court of competent jurisdiction shall ultimately determine, and such determination shall ~~be enforceable by~~have become final, ~~each~~ that the indemnified action of such Indemnified Person in the ~~D&O Indemnified Parties, their heirs~~ manner contemplated hereby is prohibited by applicable Law; and ~~their representatives~~(v) all rights to indemnification in respect of any such Legal Proceedings shall continue until final disposition of all such Legal Proceedings. (gd) ~~From and after~~ If a “tail policy” is not obtained by the Company prior to the Effective Time, from the Effective Time until the six-year anniversary of the Closing Date, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain, in effect, the existing directors’ and officers’ and fiduciary liability insurance policies maintained by the Company as of the date of this Agreement for the benefit of the Company, the Company Subsidiaries and the Indemnified Persons who are currently covered by such existing policies with respect to their acts and omissions occurring prior to the Effective Time in their capacities as directors and officers of the Company (as applicable), on terms with respect to coverage, deductibles and amounts no less favorable than the existing policy; provided that, at or prior to the Effective Time, the Company shall, unless otherwise directed by Xxxxxx in writing, through a nationally recognized insurance broker approved by Parent (such approval not to be unreasonably withheld, delayed, or conditioned) purchase a six-year “tail” policy for the existing policies effective as of the Effective Time and if an applicable “tail policy” has been obtained, it shall be deemed to satisfy all obligations to obtain and/or maintain insurance pursuant to this Section 5.7(d); provided that in no event shall the Surviving Corporation be required to pay annual premiums (or premium for a “tail policy”) in excess of 300% of the annual premiums currently payable by the Company with respect to such current policies, it being understood that if the annual premiums payable for such insurance coverage exceeds such amount, Parent shall be obligated to cause the Company to obtain policies with the greatest coverage available for a cost equal to such amount. (e) If Parent or the Surviving Corporation or any of their respective legal successors or permitted assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving ~~corporation or entity~~ Person of such consolidation or ~~merger,~~ merger or (ii) transfers all or substantially all of its properties and assets to any ~~Person~~Person or consummates any division transaction, then, and in each such case, proper ~~provision~~ provisions shall be made so that the legal successors and permitted assigns of Parent or the Surviving ~~Corporation, as the case may be,~~ Corporation shall ~~succeed to~~ assume all of the obligations set forth in this Section 5.7~~. Parent~~ . (f) The provisions of this Section 5.7 shall ~~cause~~ survive the ~~Surviving Corporation to perform all~~ consummation of the ~~obligations~~ Transactions and are (i) intended to be for the benefit of, and shall be enforceable by, each of the ~~Surviving Corporation~~ Indemnified Persons and their successors, assigns, and heirs and (ii) in addition to, and not in substitution for, any other right to indemnification, advancement, or contribution that any such Person may have by contract or otherwise. (g) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any right to any directors’ and officers’, executive and corporate securities insurance claims under ~~this Section 5.7. The obligations set forth~~ any policy that is or has been in existence with respect to the Company or any Company Subsidiary for any of their respective directors, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 5.7 ~~shall~~ is not ~~be terminated, amended~~ prior to or ~~otherwise modified~~ in substitution for any ~~manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary~~ such claim under ~~the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of~~ such ~~affected D&O Indemnified Party or other person~~policies.

Appears in 1 contract

Samples: Merger Agreement (Landos Biopharma, Inc.)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of Parent and the Surviving ~~Corporation, jointly and severally,~~ Corporation shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of Parent or the ~~Company and their respective Subsidiaries~~Company, respectively (the “D&O Indemnified Parties”), against all claims, losses, ~~liabilities~~Liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under ~~applicable Law~~the DGCL. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the ~~Organizational Documents~~ certificate of incorporation and bylaws of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are presently set forth in the ~~Organizational Documents~~ certificate of incorporation and bylaws of Parent ~~as of the date of this Agreement~~ shall not be amended, modified or repealed for a period of six ~~(6)~~ years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent, unless such modification is required by applicable Law. The ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation shall contain, and Parent shall cause the ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~Parent. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a ~~six (6)-year~~ six-year prepaid “D&O tail policy” ~~(the “D&O Tail Policy”)~~ for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six ~~(6)~~ years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective ~~Time. During~~ Time with terms, conditions, retentions and limits of liability that are no less favorable than the ~~term~~ coverage provided under Parent’s existing policies as of the ~~D&O Tail Policy~~date of this Agreement with respect to any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director or officer of Parent ~~shall not take any action following~~ by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time ~~to cause~~ (including in connection with this Agreement or the ~~D&O Tail Policy to be cancelled~~ Contemplated Transactions or ~~any provision therein to be amended or waived~~ in ~~any manner that would adversely affect in any material respect the rights~~ connection with Parent’s initial public offering of ~~their former and current officers and directors~~shares of Parent Common Stock). (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their ~~successful~~ enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by ~~Law~~law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) ~~From and after the Effective Time, in~~ In the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or ~~merger,~~ merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person.

Appears in 1 contract

Samples: Merger Agreement (Aduro Biotech, Inc.)

Indemnification of Officers and Directors. (a) From the First Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the First Effective Time occurs, each of Parent and the Surviving ~~Corporation, jointly and severally,~~ Entity shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the First Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of Parent or the ~~Company and their respective Subsidiaries~~Company, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of Parent or of the Company, whether asserted or claimed prior to, at or after the First Effective Time, in each case, to the fullest extent permitted under ~~applicable Law~~the DGCL. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving ~~Corporation~~Entity, jointly and severally, upon receipt by Parent or the Surviving ~~Corporation~~ Entity from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The ~~provisions~~ certificate of ~~the Organizational Documents of Parent with respect to indemnification, advancement of expenses~~ formation and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents limited liability company agreement of the Surviving ~~Corporation~~ Entity shall contain, and Parent shall cause the ~~Organizational Documents~~ certificate of formation and limited liability company agreement of the Surviving ~~Corporation~~ Entity to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~Parent. (c) From and after the First Effective Time, (i) the Surviving ~~Corporation~~ Entity shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the First Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the First Effective Time. (d) From and after the First Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially ~~available~~ reasonable terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall ~~purchase~~purchase at its sole expense, prior to the First Effective Time, a six (~~6)-year~~ 6) year prepaid “D&O tail policy” (the “D&O Tail Policy”) for the non-~~cancellable~~ cancelable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the First Effective Time with respect to any claim related to any period of time at or prior to the First Effective ~~Time. During~~ Time with terms, conditions, retentions and limits of liability that are no less favorable than the ~~term~~ coverage provided under Parent’s existing policies as of the date of this Agreement, or otherwise acceptable to Parent, except that Parent will not commit or spend on such D&O Tail Policy annual premiums in excess of 250% of the annual premiums paid by Parent in its last full fiscal year prior to the date hereof for Parent’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (nor, for the avoidance of doubt, shall Parent be obligated to spend any specific amount), and if such premiums for such D&O tail Policy would exceed 250% of such annual premium, then Parent shall purchase policies that provide the maximum coverage available at an annual premium equal to 250% of such annual premium. The Company shall in good faith cooperate with Parent prior to the First Effective Time with respect to the procurement of such D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the First Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section ~~5.7~~ ‎6.7 in connection with their ~~successful~~ enforcement of the rights provided to such persons in this Section ~~5.7~~‎6.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ ‎6.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their ~~representatives~~Representatives. (g) ~~From and after the Effective Time, in~~ In the event Parent or the Surviving ~~Corporation~~ Entity or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or ~~merger,~~ merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving ~~Corporation~~Entity, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~‎6.7. Parent shall cause the Surviving ~~Corporation~~ Entity to perform all of the obligations of the Surviving ~~Corporation~~ Entity under this Section ~~5.7. The obligations set forth~~ ‎6.7. (h) Unless directed otherwise by the Company in ~~this Section 5.7~~ writing no less than three (3) Business Days before the Closing Date, Parent shall ~~not be terminated, amended or otherwise modified in~~ use reasonable best efforts to take all actions as are necessary to terminate any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party 401(k) or other ~~person~~plan(s) with a cash or deferred arrangement (as defined in Section 401(k) of the Code), effective as of no later than the day immediately preceding the Closing Date. Parent shall provide the Company copies of all such corporate actions or documentation related to the same at least three (3) Business Days before their adoption or approval for the Company’s reasonable review and comment.

Appears in 1 contract

Samples: Merger Agreement (Pulmatrix, Inc.)

Indemnification of Officers and Directors. (a) From the Effective Time through the ~~sixth (6th)~~ third anniversary of the date on which the Effective Time occurs, each of Parent and the Surviving Corporation, jointly and severally, shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, fiduciary or agent of Parent or the Company and their respective Subsidiaries, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the ~~Organizational Documents~~ memorandum and articles of association of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are presently set forth in the ~~Organizational Documents~~ memorandum and articles of association of Parent ~~as of the date of this Agreement~~ shall not be amended, modified or repealed for a period of ~~six (6)~~ three years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) ~~From and after~~ Notwithstanding anything to the ~~Effective Time~~contrary, ~~Parent~~ this Section 4.5 shall ~~maintain directors’ and officers’~~ not eliminate any liability ~~insurance policies, with an effective date as~~ of the ~~Closing Date, on commercially available terms~~ Principal Sellers to Parent Indemnified Persons pursuant to Section 1.9 and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (Section 6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section ~~5.7~~ 4.5 in connection with their successful enforcement of the rights provided to such persons in this Section ~~5.7~~4.5. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective ~~Organizational Documents~~ certificates of incorporation or by-laws or other organization documents or in any agreement shall survive the ~~Merger~~ Mergers and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 4.5 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) ~~From and after the Effective Time, in~~ In the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~4.5. Parent shall cause the ~~Surviving Corporation~~ surviving corporation to perform all of the obligations of the Surviving Corporation under this Section ~~5.7~~4.5. The obligations set forth in this Section ~~5.7~~ 4.5 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section ~~5.7~~ 4.5 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person.

Appears in 1 contract

Samples: Agreement and Plan of Merger and Reorganization (Portage Biotech Inc.)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of ~~Parent~~ Yumanity and the Surviving ~~Corporation~~Corporation shall, jointly and severally, ~~shall~~ indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Yumanity or the Company ~~and their respective Subsidiaries, respectively~~ (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Yumanity or of the Company, whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under ~~applicable Law~~the DGCL and the WBCA for directors or officers of Delaware and Washington corporations respectively. Each D&O Indemnified Party will be entitled to advancement of reasonable and documented expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from ~~each of Parent~~ Yumanity and the Surviving Corporation, jointly and severally, to the same extent as such D&O Indemnified Party is entitled to advancement of expenses as of the date of this Agreement by Yumanity or the Company pursuant to the certificate of incorporation and bylaws of Yumanity and articles of incorporation and bylaws of the Company in effect on the date of this Agreement or any applicable indemnification agreement, upon receipt by ~~Parent~~ Yumanity or the Surviving Corporation from the D&O Indemnified Party of a request therefor; ~~provided~~ provided, that any ~~such~~ person to whom expenses are advanced provides an a written undertaking ~~to Parent, to the extent then required by the DGCL,~~ to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The ~~provisions~~ certificate of incorporation and bylaws Yumanity and the articles of incorporation and bylaws the Surviving Corporation shall contain, and Yumanity shall cause the articles of incorporation and bylaws of the ~~Organizational Documents of Parent~~ Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent that~~ each of Yumanity and the Company than are presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of Yumanity and the articles of incorporation and bylaws of the ~~date of this Agreement~~ Company, which provisions shall not be amended, modified or repealed for a period of six ~~(6) years~~ years’ time from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of ~~Parent. The Organizational Documents of~~ Yumanity and the ~~Surviving Corporation shall contain~~Company, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as ~~those set forth in the Organizational Documents of Parent as of the date of this Agreement~~applicable. (c) From and after the Effective Time, ~~(i)~~ Yumanity shall, at the expense of the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified PartiesCorporation, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to ~~Parent~~Yumanity. In addition, ~~Parent~~ Yumanity shall purchase, prior to the Effective Time, a ~~six (6)-year~~ six-year prepaid “D&O tail policy” ~~(the “D&O Tail Policy”)~~ for the non-cancellable extension of the directors’ and officers’ liability coverage of ~~Parent~~Yumanity’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six ~~(6)~~ years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective ~~Time. During~~ Time with terms, conditions, retentions and limits of liability that are no less favorable than the ~~term~~ coverage provided under Yumanity’s existing policies as of the ~~D&O Tail Policy~~date of this Agreement with respect to any actual or alleged error, ~~Parent shall not take~~ misstatement, misleading statement, act, omission, neglect, breach of duty or any ~~action following~~ matter claimed against a director or officer of Yumanity by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time ~~to cause~~ (including in connection with this Agreement or the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directorsContemplated Transactions). (ed) ~~From and after the Effective Time, Parent~~ Yumanity shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section ~~5.7~~ 5.6 in connection with their successful enforcement of ~~the~~ their rights provided ~~to such persons~~ in this Section ~~5.7~~5.6. (fe) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 5.6 are intended to be in addition to the rights otherwise available to the current and former officers and directors of ~~Parent~~ Yumanity and the ~~Company~~ Company, as applicable, by ~~Law~~law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their ~~representatives~~Representatives. In addition to the rights provided by this Agreement, to the extent that current and former officers and directors of Yumanity and the Company have existing rights under any agreement between such officer or director and Yumanity or the Company, as applicable, with respect to indemnification, the Surviving Corporation will take all good faith efforts necessary to maintain in place such other agreement and to indemnify such officer or director to the maximum extent possible under this Agreement as well as such other agreement. (gf) ~~From and after the Effective Time, in~~ In the event ~~Parent~~ Yumanity or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any ~~Person~~person, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ Yumanity or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person5.6.

Appears in 1 contract

Samples: Merger Agreement (Yumanity Therapeutics, Inc.)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of ~~Parent~~ Terrain and the Surviving ~~Corporation, jointly and severally,~~ Corporation shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Terrain or the ~~Company and their respective Subsidiaries~~Company, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Terrain or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under ~~applicable Law~~the DGCL. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of ~~Parent~~ Terrain and the Surviving Corporation, jointly and severally, upon receipt by ~~Parent~~ Terrain or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to ~~Parent~~Terrain, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. Without otherwise limiting the D&O Indemnified Parties’ rights with regards to counsel, following the Effective Time, the D&O Indemnified Parties shall be entitled to continue to retain Xxxxxxx Procter LLP, or such other counsel selected by the D&O Indemnified Parties. (b) The provisions of the ~~Organizational Documents~~ certificate of ~~Parent~~ incorporation and bylaws of Terrain with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent~~ Terrain that are presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~ Terrain shall not be amended, modified or repealed for a period of six ~~(6)~~ years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of ~~Parent~~Terrain, unless such modification is required by applicable Law. The ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation shall contain, and ~~Parent~~ Terrain shall cause the ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~Terrain. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) ~~Parent~~ Terrain shall fulfill and honor in all respects the obligations of ~~Parent~~ Terrain to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under ~~Parent~~Xxxxxxx’s Organizational Documents and pursuant to any indemnification agreements between ~~Parent~~ Terrain and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, ~~Parent~~ Terrain shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to ~~Parent~~Terrain. In addition, ~~Parent~~ Terrain shall purchase, prior to the Effective Time, a ~~six (6)-year~~ six-year prepaid “D&O tail policy” ~~(the “D&O Tail Policy”)~~ for the non-cancellable extension of the directors’ and officers’ liability coverage of ~~Parent~~Terrain’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six ~~(6)~~ years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective ~~Time. During~~ Time with terms, conditions, retentions and limits of liability that are no less favorable than the ~~term~~ coverage provided under Xxxxxxx’s existing policies as of the ~~D&O Tail Policy~~date of this Agreement with respect to any actual or alleged error, ~~Parent shall not take~~ misstatement, misleading statement, act, omission, neglect, breach of duty or any ~~action following~~ matter claimed against a director or officer of Terrain by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time ~~to cause~~ (including in connection with this Agreement or the ~~D&O Tail Policy to be cancelled~~ Contemplated Transactions or ~~any provision therein to be amended or waived~~ in ~~any manner that would adversely affect in any material respect the rights~~ connection with Xxxxxxx’s initial public offering of ~~their former and current officers and directors~~shares of Terrain Common Stock). (e) From and after the Effective Time, ~~Parent~~ Terrain shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section ~~5.7~~ 6.8 in connection with their ~~successful~~ enforcement of the rights provided to such persons in this Section ~~5.7~~6.8. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 6.8 are intended to be in addition to the rights otherwise available to the current and former officers and directors of ~~Parent~~ Terrain and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) ~~From and after the Effective Time, in~~ In the event ~~Parent~~ Terrain or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or ~~merger,~~ merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ Terrain or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~6.8. ~~Parent~~ Terrain shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person6.8.

Appears in 1 contract

Samples: Merger Agreement (Talaris Therapeutics, Inc.)

Indemnification of Officers and Directors. (a) All rights to indemnification, advancement of expenses and exculpation by the Company existing as of the date hereof in favor of those Persons who are directors and officers of any Acquired Company as of the date of this Agreement or have been directors and officers of any Acquired Company in the past (collectively, the “Indemnified Persons”) for their acts and omissions occurring prior to the Effective Time, as provided in the certificate of incorporation and bylaws (or applicable governing documents) of the applicable Acquired Company (as in effect as of the date of this Agreement) and as provided in the indemnification agreements between the Acquired Company and said Indemnified Persons (as set forth on Part 6.5(a) of the Company Disclosure Schedule and in effect as of the date of this Agreement) in the forms made available by the Company to Parent or Parent’s Representatives prior to the date of this Agreement, shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of such Indemnified Persons, and shall be observed by the Surviving Corporation and its Subsidiaries to the fullest extent available under Delaware law for a period of six years from the Effective Time, and any claim made pursuant to such rights within such six-year period shall continue to be subject to this Section 6.5(a) and the rights provided under this Section 6.5(a) until disposition of such claim. (b) From the Effective Time ~~through~~ until the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, ~~each of~~ Parent and the Surviving ~~Corporation~~Corporation (together with their successors and assigns, ~~jointly and severally~~the “Indemnifying Parties”) shall, ~~shall~~ to the extent described in Section 6.5(a), indemnify and hold harmless each ~~person who is now,~~ Indemnified Person in his or ~~has been at any time prior to the date hereof,~~ her capacity as an officer or ~~who becomes prior to the Effective Time, a director, officer, fiduciary or agent~~ director of ~~Parent or the~~ an Acquired Company ~~and their respective Subsidiaries, respectively (the “D&O Indemnified Parties”),~~ against all losses, claims, ~~losses~~damages, liabilities, ~~damages, judgments, fines and reasonable~~ fees, ~~costs and~~ expenses, ~~including attorneys’ fees and disbursements,~~ judgments or fines incurred by such Indemnified Person as an officer or director of an Acquired Company in connection with any ~~claim, action, suit, proceeding~~ pending or ~~investigation, whether civil, criminal, administrative~~ threatened Legal Proceeding based on or ~~investigative,~~ arising out of of, in whole or ~~pertaining to~~ in part, the fact that ~~the D&O~~ such Indemnified ~~Party~~ Person is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Acquired Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and ~~(ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant~~ pertaining to any ~~indemnification provisions under Parent’s Organizational Documents~~ and ~~pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties~~all matters pending, ~~with respect to claims arising out of matters occurring at~~ existing or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) From and after the Effective Time, ~~in the event Parent or the Surviving Corporation or~~ including any ~~of their respective successors or assigns (i) consolidates~~ such matter arising under any claim with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed respect to the ~~obligations set forth in this Section 5.7~~transactions contemplated herein. ~~Parent shall cause~~ Without limiting the ~~Surviving Corporation to perform all~~ foregoing, from the Effective Time until the sixth anniversary of the ~~obligations of~~ date on which the ~~Surviving Corporation under this~~ Effective Time occurs, the Indemnifying Parties shall also, to the extent described in Section ~~5.7. The obligations set forth~~ 6.5(a), advance reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Indemnified Persons in ~~this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O~~ connection with matters for which such Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other personPersons are

Appears in 1 contract

Samples: Merger Agreement (Mallinckrodt PLC)

Indemnification of Officers and Directors. (a) From and after the Effective ~~Time through the sixth (6th) anniversary of the date on which the Effective Time occurs~~Time, each of Parent and the Surviving ~~Corporation~~Corporation shall, jointly and severally, ~~shall~~ indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent or~~ the Company ~~and their respective Subsidiaries, respectively~~ or any of its Subsidiaries (the “~~D&O~~ Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the ~~D&O~~ Indemnified Party is or was ~~a director, officer, fiduciary~~ an officer or ~~agent of Parent or~~ director of the ~~Company~~Company or any of its Subsidiaries, whether asserted or claimed ~~prior to~~before, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted ~~under~~ by law and required by the organizational documents of the Company or any of its Subsidiaries and any indemnity agreements applicable ~~Law~~to such Indemnified Party in effect on the date of this Agreement. Each ~~D&O~~ Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving ~~Corporation, jointly~~ Corporation in accordance with the organizational documents of the Company or any of its Subsidiaries and ~~severally, upon receipt by Parent or the Surviving Corporation from the D&O~~ any indemnity agreements applicable to such Indemnified Party in effect on the date of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnificationthis Agreement. (b) ~~The provisions of~~ From the ~~Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in~~ Effective Time through the ~~Organizational Documents of Parent as~~ sixth anniversary of the date ~~of this Agreement shall not be amended, modified or repealed for a period of six (6) years from~~ on which the Effective Time ~~in a manner that would adversely affect~~ occurs, the ~~rights thereunder~~ certificate of ~~individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents~~ incorporation and bylaws of the Surviving Corporation shall contain, and Parent shall cause the ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers ~~as those~~ of the Company and its Subsidiaries than are presently set forth in the ~~Organizational Documents~~ Company’s certificate of ~~Parent as of the date of this Agreement~~incorporation and bylaws. (c) ~~From and after~~ Subject to the ~~Effective Time~~next sentence, the Surviving Corporation shall, at no expense to the beneficiaries, either (i) maintain, and Parent shall cause the Surviving Corporation ~~shall fulfill and honor~~ to maintain in ~~all respects~~ effect for six years from the ~~obligations~~ Effective Time the current policies of the ~~Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents~~ directors’ and ~~pursuant to any indemnification agreements between~~ officers’ liability insurance maintained by the Company ~~and such~~ (the “Current D&O ~~Indemnified Parties,~~ Insurance”) with respect to ~~claims arising out of~~ matters existing or occurring at or prior to the Effective Time ~~and~~ (~~ii) Parent shall fulfill and honor~~ including the Contemplated Transactions), so long as the annual premium therefor would not be in ~~all respects~~ excess of 225% of the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or last annual premium paid prior to the Effective ~~Time.~~ Time (dsuch 225%, the “Maximum Premium”), or (ii) ~~From~~ purchase a six year extended reporting period endorsement with respect to the Current D&O Insurance (a “Reporting Tail Endorsement”) and ~~after~~ maintain such endorsement in full force and effect for its full term. If the ~~Effective Time~~Company’s existing insurance expires, is terminated or canceled during such six-year period or exceeds the Maximum Premium, the Surviving Corporation shall obtain, and Parent shall ~~maintain~~ cause the Surviving Corporation to obtain, as much directors’ and officers’ liability insurance ~~policies, with~~ as can be obtained for the remainder of such period for an ~~effective date as~~ annualized premium not in excess of the ~~Closing Date~~Maximum Premium, on ~~commercially available~~ terms and conditions ~~and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior~~ no less advantageous to the ~~Effective Time, a six (6)-year prepaid “tail policy” (~~Indemnified Parties than the ~~“D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent~~Company’s existing directors’ and officers’ ~~insurance policies for a claims reporting or discovery period~~ liability insurance. Notwithstanding anything to the contrary in this Agreement, to the extent that Parent has not purchased the Reporting Tail Endorsement (which Parent may not do without the Company’s prior written consent, such consent not to be unreasonably withheld) within thirty days of ~~at least six (6) years from and after~~ the ~~Effective Time with respect to any claim related to any period~~ date of ~~time at or~~ this Agreement, the Company may, prior to the Effective ~~Time. During~~ Time but only after consultation with Parent, purchase a Reporting Tail Endorsement, provided that the ~~term of~~ Company does not pay more than the ~~D&O~~ Maximum Premium for such Reporting Tail ~~Policy~~Endorsement, in which case, provided that Parent causes the Surviving Corporation to maintain such Reporting Tail Endorsement in full force and effect for its full term, Parent shall ~~not take any action following~~ be relieved from its obligations under the ~~Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights~~ preceding two sentences of ~~their former and current officers and directors~~this Section 5.5(c). (ed) ~~From and after the Effective Time,~~ Parent shall pay all expenses, including reasonable attorneys’ fees, that ~~are~~ may be incurred by the persons referred to in this Section ~~5.7~~ 5.5 in connection with their ~~successful~~ enforcement of ~~the~~ their rights provided ~~to such persons~~ in this Section ~~5.7~~5.5. (fe) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 5.5 are intended to be in addition to, and Parent shall, and shall cause the Surviving Corporation to, enforce and honor, to the fullest extent permitted by law for a period of six years from the Effective Time, the rights otherwise available to the current ~~and former~~ officers and directors of ~~Parent and~~ the Company and its Subsidiaries by ~~Law~~law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the ~~D&O~~ Indemnified Parties, their heirs and their ~~representatives~~Representatives. (g) From and after the Effective Time, in the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person

Appears in 1 contract

Samples: Merger Agreement (Connetics Corp)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs, each of ~~Parent~~ Corautus and the Surviving ~~Corporation~~Corporation shall, jointly and severally, ~~shall~~ indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Corautus or ~~the Company and their respective Subsidiaries, respectively~~ VIA (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Corautus or ~~of the Company~~VIA, whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under ~~applicable Law~~the DGCL for directors or officers of Delaware corporations. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of ~~Parent~~ Corautus and the Surviving Corporation, jointly and severally, upon receipt by ~~Parent~~ Corautus or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any ~~such~~ person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The ~~provisions~~ certificate of incorporation and bylaws of each of Corautus and the Surviving Corporation shall contain, and Corautus shall cause the certificate of incorporation and bylaws of the ~~Organizational Documents of Parent~~ Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent that~~ each of Corautus and VIA than are presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent~~ incorporation and bylaws of Corautus and VIA, as ~~of the date of this Agreement~~ applicable, which provisions shall not be amended, modified or repealed for a period of six (6) years time from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this AgreementCorautus or VIA. (c) ~~From and after~~ After the Effective Time, Corautus, at its election, may purchase “tail” coverage for up to six (i6) years from the ~~Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior~~ Closing, relating to the ~~Closing pursuant to any indemnification provisions under~~ current directors’ and officers’ liability insurance policies maintained by VIA (provided that Corautus may substitute therefor policies of at least the ~~Company’s Organizational Documents~~ same coverage containing terms and ~~pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties,~~ conditions that are not materially less favorable) with respect to ~~claims arising out of~~ matters occurring at on or prior to the ~~Effective Time and (ii) Parent~~ Closing; provided, however, that in no event shall ~~fulfill and honor in all respects the obligations of Parent~~ Corautus be required to ~~its D&O Indemnified Parties as of immediately prior to the Closing~~ expend pursuant to ~~any indemnification provisions under Parent’s Organizational Documents and pursuant~~ this Section 5.7(c) more than an amount equal to ~~any indemnification agreements between Parent and~~ 150% of current annual premiums paid by VIA for such ~~D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time~~insurance. (d) ~~From and after~~ Prior to the Effective Time, ~~Parent~~ Corautus, at its election, may purchase “tail” coverage for up to six (6) years from the Closing, relating to the current directors’ and officers’ liability insurance policies maintained by Corautus (provided that Corautus may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable) with respect to matters occurring on or prior to the Closing; provided, however, that in no event shall Corautus be required to expend pursuant to this Section 5.7(d) more than an amount equal to 150% of current annual premiums paid by Corautus for such insurance. (e) Corautus shall maintain directors’ and officers’ liability insurance policies~~, with an effective date as of the Closing Date~~, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to ~~Parent. In addition~~Corautus, ~~Parent~~ and shall ~~purchase, prior~~ use its commercially reasonable efforts to ~~the Effective Time, a six~~ cause to be covered under such policies those directors and officers (~~6)-year prepaid “tail policy” (the “D&O Tail Policy”~~or former officers) ~~for the non-cancellable extension of the~~ covered under Corautus’ directors’ and officers’ liability ~~coverage of Parent’s existing directors’ and officers’~~ insurance policies ~~for a claims reporting or discovery period~~ as of ~~at least six (6) years from and after~~ the ~~Effective Time with respect to any claim related to any period of time at or prior~~ Execution Date, in each case to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any extent reasonably practicable and for no material ~~respect the rights of their former and current officers and directors~~incremental cost premium. (ef) ~~From and after the Effective Time, Parent~~ Corautus shall pay all expenses, including reasonable attorneys’ fees, that ~~are~~ may be incurred by the persons referred to in this Section 5.7 in connection with their ~~successful~~ enforcement of ~~the~~ their rights provided ~~to such persons~~ in this Section 5.7. (fg) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of ~~Parent~~ Corautus and ~~the Company~~ VIA by ~~Law~~law, charter, statute, ~~bylaw~~ by-law or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (gh) ~~From and after the Effective Time, in~~ In the event ~~Parent~~ Corautus or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any ~~Person~~person, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ Corautus or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.7~~. Parent~~ . (i) Corautus shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person.

Appears in 1 contract

Samples: Merger Agreement (Corautus Genetics Inc)

Indemnification of Officers and Directors. (a) From and after the Effective Time, Parent will cause the Surviving Corporation to fulfill and honor in all respects the obligations of the Company pursuant to (i) each indemnification agreement currently in effect between Parent and each person who is or was a director or officer of Parent at or prior to the Effective Time ~~through~~ and (ii) any indemnification provision under the ~~sixth~~ Company's Certificate of Incorporation or By-Laws and any indemnification provision under Parent's Certificate of Incorporation or By-Laws, all as is in effect on the date hereof (~~6th~~the persons to be indemnified pursuant to the agreements or provisions referred to in this Section 6.5(a) ~~anniversary~~ shall be referred to as, collectively, the "Indemnified Parties"). The Certificate of Incorporation and By-Laws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's Certificate of Incorporation and By-Laws on the date on of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time ~~occurs~~in any manner that would adversely affect the rights thereunder of any Indemnified Party. (b) Without limiting the provisions of Section 6.5(a), ~~each of~~ during the period ending six years after the Effective Time, Parent ~~and the Surviving Corporation, jointly and severally, shall~~ will indemnify and hold harmless each ~~person who is now,~~ Indemnified Party against and from any costs or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, fiduciary or agent of Parent or the Company and their respective Subsidiaries, respectively expenses (~~the “D&O Indemnified Parties”~~including reasonable attorneys' fees), ~~against all claims~~judgments, fines, losses, ~~liabilities~~claims, damages, ~~judgments, fines~~ liabilities and ~~reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred~~ amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, ~~arising~~ to the extent such claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent such claim, action, suit, proceeding or investigation arises out of or ~~pertaining~~ pertains to ~~the fact that the D&O Indemnified Party is~~ (1) any action or ~~was~~ omission or alleged action or omission in his or her capacity as a ~~director, officer, fiduciary~~ director or ~~agent of Parent or~~ officer of the Company, Parent or any of their subsidiaries (regardless of whether ~~asserted~~ such action or ~~claimed~~ omission, or alleged action or omission, occurred prior to, at on or after the Closing Date) or (2) any of the transactions contemplated by this Agreement, in each case to the full extent a corporation is permitted under the DGCL to indemnify its own directors and officers, as the case may be; provided, however, that if, at any time prior to the sixth anniversary of the Effective Time, ~~in each case, to the fullest extent permitted under applicable Law. Each D&O~~ any Indemnified Party ~~will be entitled~~ delivers to ~~advancement~~ Parent a written notice asserting a claim for indemnification under this Section 6.5(b), then the claim asserted in such notice shall survive the sixth anniversary of ~~expenses incurred in~~ the ~~defense~~ Effective Time until such time as such claim is fully and finally resolved. In the event of any such claim, action, suit, proceeding or ~~investigation from each of~~ investigation, (i) Parent ~~and~~ will have the ~~Surviving Corporation~~right to control the defense thereof after the Effective Time (it being understood that, ~~jointly and severally~~by electing to control the defense thereof, ~~upon receipt~~ Parent will be deemed to have waived any right to object to the indemnified Parties' entitlements to indemnification hereunder with respect thereto), (ii) any counsel retained by ~~Parent or~~ the ~~Surviving Corporation from~~ Indemnified Parties with respect to the ~~D&O Indemnified Party of a request therefor; provided that~~ defense thereof for any ~~such person to whom expenses are advanced provides an undertaking~~ period after the Effective Time must be reasonably satisfactory to Parent, to and (iii) after the ~~extent then required by~~ Effective Time, Parent will pay the ~~DGCL~~reasonable fees and expenses of such counsel, ~~to repay such advances if it is ultimately determined~~ promptly after statements therefor are received (provided that ~~such person~~ in the event that any Indemnified Party is not entitled to ~~indemnification.~~ indemnification hereunder, any amounts advanced on his or her behalf shall be remitted to the Surviving Corporation); provided, however, that neither Parent nor the Surviving Corporation nor any Indemnified Party, will be liable for any settlement effected without its express written consent. The Indemnified Parties as a group may retain only one law firm (bin addition to local counsel) ~~The provisions of the Organizational Documents of Parent~~ to represent them with respect to any single action unless counsel for any Indemnified Party determines in good faith that, under applicable standards of professional conduct, a conflict exists or is reasonably likely to arise on any material issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary contained in this Section 6.5(b) or elsewhere in this Agreement, Parent agrees that it will not settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, action, suit, proceeding or investigation for which indemnification may be sought under this Agreement unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Parties from all liability arising out of such claim, action, suit, proceeding or investigation. Without limiting the foregoing, in any case in which approval of or a determination by the Surviving Corporation is required to effectuate any indemnification, ~~advancement~~ the Indemnified Parties will conclusively be deemed to have met the applicable standards for indemnification with respect to any actions or omissions of ~~expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent~~ such Indemnified Parties as an officer or director of the ~~date of this Agreement shall not be amended, modified~~ Company or ~~repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at~~ Parent on or prior to the Effective ~~Time, were officers or directors of Parent. The Organizational Documents~~ Time relating to any of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of transactions contemplated by this Agreement. (c) ~~From~~ Parent and ~~after the Effective Time, (i)~~ the Surviving Corporation ~~shall fulfill~~ jointly and ~~honor in~~ severally agree to pay all ~~respects~~ expenses, including attorneys' fees, that may be incurred by the ~~obligations of the Company to its D&O~~ Indemnified Parties ~~as of immediately prior to~~ in enforcing the ~~Closing pursuant to any indemnification provisions under the Company’s Organizational Documents~~ indemnity and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor other obligations provided for in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Timethis Section 6.5. (d) ~~From and after the Effective Time,~~ Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies in effect for a ~~claims reporting or discovery~~ period of ~~at least six (6)~~ three years ~~from and~~ after the Effective Time the policy of officers' and directors' liability insurance maintained by Parent on the date of this Agreement, with ~~respect~~ coverage in amount and scope at least as favorable as the Parent's existing directors' and officers' liability insurance coverage, provided that such policy shall not be required to be maintained if equivalent coverage is provided to such Persons under another policy of officers' and directors' liability insurance; and provided further that in no event shall Parent be required to expend in any ~~claim related to any period~~ one year an amount in excess of ~~time at or prior to the Effective Time. During the term~~ 150% of the ~~D&O Tail Policy~~annual premium currently paid by Parent for such insurance; and provided further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available for a cost not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directorsexceeding such amount. (e) ~~From~~ This Section 6.5 shall survive the consummation of the Merger and ~~after~~ the Effective Time, ~~Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred~~ is intended to benefit and may be enforced by the ~~persons referred to in this Section 5.7 in connection with their successful enforcement of~~ Company, Parent, the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent Surviving Corporation and the ~~Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of~~Indemnified Parties, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) From and after the Effective Time, in the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers binding on all ~~or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the~~ successors and assigns of Parent or and the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person.

Appears in 1 contract

Samples: Merger Agreement (Abb Asea Brown Boveri LTD)

Indemnification of Officers and Directors. (a) ~~From the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs, each of Parent and~~ Akebia shall cause the Surviving Corporation~~, jointly~~ ’s certificate of incorporation and ~~severally, shall indemnify and hold harmless each person who is now, or has been at any time prior~~ bylaws to the date hereof, or who becomes prior to the Effective Time, a director, officer, fiduciary or agent of Parent or the Company and their respective Subsidiaries, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, contain provisions no less favorable with respect to indemnification, advancement of ~~expenses~~ expenses, and exculpation from liabilities of present and former ~~directors~~ directors, officers, and ~~officers as those set forth~~ employees of Keryx than are currently provided in the Keryx Organizational ~~Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time~~Documents, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification which provisions ~~under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties~~may not be amended, ~~with respect to claims arising out of matters occurring at~~ repealed, or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived otherwise modified in any manner that would adversely affect the rights thereunder of any such individuals until the later of (i) the expiration of the statute of limitations applicable to such matters and (ii) six (6) years from the Effective Time, and, in the event that any ~~material respect~~ Action is pending or asserted or any claim made during such period, until the disposition of any such Action or claim, unless such amendment, modification, or repeal is required by applicable Law, in which case Akebia shall, and shall cause the Surviving Corporation to, make such changes to the certificate of incorporation and the bylaws as to have the least adverse effect on the rights of ~~their former and current officers and directors~~the individuals referenced in this Section 5.07. (eb) ~~From~~ Without limiting any additional rights that any Person may have under any agreement or Keryx Plan, from and after the Effective Time, ~~Parent shall~~ Akebia and the Surviving Corporation shall, jointly and severally, indemnify and hold harmless each present (as of the Effective Time) or former director or officer of Keryx (each, together with such person’s heirs, executors, or administrators, an “Indemnified Party”), against all obligations to pay ~~all~~ a judgment, damages, settlement, or fine or penalty, and reasonable expenses (including legal expenses~~, including reasonable attorneys’ fees, that are~~ ) incurred ~~by the persons referred to in this Section 5.7~~ in connection with ~~their successful enforcement~~ any Action or claim, whether civil, criminal, administrative, arbitrative, or investigative, and whether formal or informal, by reason of the ~~rights provided to~~ fact that the Indemnified Party is or was an officer, director, employee, fiduciary, or agent of Keryx or its Subsidiaries, or of another entity if such ~~persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement~~ service was at the request of ~~expenses for acts or omissions occurring at or prior to the Effective Time~~Keryx, whether asserted or claimed prior to, at at, or after the ~~Closing~~Effective Time, ~~now~~ to the fullest extent provided for under existing arrangements disclosed to Akebia prior to the date hereof. In the event of any such Action or claim, each Indemnified Party is entitled to advancement of reasonable expenses (including legal expenses) incurred in ~~favor~~ the defense of the Action or claim from the Surviving Corporation and Akebia (provided that any Person to whom expenses are advanced shall have provided, to the extent required by the DGCL, an undertaking to repay such advances if it is finally determined that such Person is not entitled to indemnification). (c) Notwithstanding anything to the contrary in this Agreement, Keryx shall purchase prior to the Effective Time a tail policy or policies under the current directors’ and officers’ liability insurance policies maintained at such time by Keryx, which tail policy or ~~former directors~~policies (i) will be effective for a period from the Effective Time through and including the date six (6) years after the Effective Time with respect to claims arising from acts, errors or omissions that existed or occurred prior to or at the Effective Time and (ii) will contain coverage that is at least as protective to such directors and officers ~~or employees,~~ as the ~~case may be~~coverage provided by such existing policies; provided, that the total annual premium for such tail policy or policies shall not be in excess of ~~Parent~~ three hundred percent (300%) of the last annual premium paid by Keryx prior to the Effective Time. Akebia shall cause such policy or ~~the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue~~ policies to be maintained in full force and ~~effect. The provisions of this Section 5.7 are intended~~ effect for their full term, and cause all obligations thereunder to be ~~in addition to~~ honored by the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representativesSurviving Corporation. (gd) ~~From~~ Without limiting any of the rights or obligations under this Section 5.07, from and after the Effective Time, the Surviving Corporation shall keep in full force and effect, and shall comply with the ~~event Parent~~ terms and conditions of, any agreement in effect as of the date hereof between or among Keryx or any of its Subsidiaries and any Indemnified Party providing for the indemnification of such Indemnified Party, and Akebia hereby guarantees the obligations of the Surviving Corporation pursuant to such agreements. (e) This Section 5.07 shall survive the consummation of the Merger and is intended to benefit, and is enforceable by, any Person or entity referred to in this Section 5.07. The indemnification and advancement provided for in this Section 5.07 is not exclusive of any other rights to which the Indemnified Party is entitled whether pursuant to Law, contract, or otherwise. If Akebia, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and ~~shall~~ is not be the continuing or surviving corporation or entity of resulting from such consolidation or ~~merger,~~ merger or (ii) transfers all or ~~substantially all~~ majority of its properties and assets to any Person, then, and in each such case, Akebia shall make proper provision ~~shall be made so~~ such that the respective successors and assigns of ~~Parent or~~ the Akebia and Surviving ~~Corporation, as~~ Corporation assume the ~~case may be, shall succeed to the~~ applicable obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person5.07.

Appears in 1 contract

Samples: Merger Agreement (Keryx Biopharmaceuticals Inc)

Indemnification of Officers and Directors. (a) From the First Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the First Effective Time occurs, each of Parent and the Surviving ~~Corporation, jointly and severally,~~ Company shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the First Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of Parent or the ~~Company and their respective Subsidiaries~~Company, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of Parent or of the Company, whether asserted or claimed prior to, at or after the First Effective Time, in each case, to the fullest extent permitted under ~~applicable Law~~the DGCL and the DLLCA. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving ~~Corporation~~Company, jointly and severally, upon receipt by Parent or the Surviving ~~Corporation~~ Company from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the ~~DGCL~~DGCL and the DLLCA, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the ~~Organizational Documents~~ certificate of incorporation and bylaws of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are presently set forth in the ~~Organizational Documents~~ certificate of incorporation and bylaws of Parent ~~as of the date of this Agreement~~ shall not be amended, modified or repealed for a period of six ~~(6)~~ years from the First Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the First Effective Time, were officers or directors of Parent, unless such modification is required by applicable Law. The ~~Organizational Documents~~ certificate of formation and limited liability company agreement of the Surviving ~~Corporation~~ Company shall contain, and Parent shall cause the ~~Organizational Documents~~ limited liability company agreement of the Surviving ~~Corporation~~ Company to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~Parent. (c) From and after the First Effective Time, (i) the Surviving ~~Corporation~~ Company shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the First Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the First Effective Time. (d) From and after the First Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the First Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section ~~5.7~~ 5.5 in connection with their successful enforcement of the rights provided to such persons in this Section ~~5.7~~5.5. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 5.5 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their ~~representatives~~Representatives. (g) ~~From and after the Effective Time, in~~ In the event Parent or the Surviving ~~Corporation~~ Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or ~~merger,~~ merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving ~~Corporation~~Company, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~5.5. Parent shall cause the Surviving ~~Corporation~~ Company to perform all of the obligations of the Surviving ~~Corporation~~ Company under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person5.5.

Appears in 1 contract

Samples: Merger Agreement (First Wave BioPharma, Inc.)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of Parent and the Surviving ~~Corporation, jointly and severally,~~ Corporation shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective ~~Time~~Time in accordance herewith, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of Parent or the ~~Company and their respective Subsidiaries~~Company, ~~respectively~~ as the case may be (collectively, the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including reasonable attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under ~~applicable Law~~the DGCL for directors or officers of Delaware corporations (a “Covered D&O Matter”). Each D&O Indemnified Party will be entitled to advancement of reasonable expenses incurred in the defense of any ~~such claim, action, suit, proceeding or investigation~~ Covered D&O Matter from ~~each of~~ Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving ~~Corporation~~ Corporation, as the case may be, from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to ~~Parent, to~~ Parent and the ~~extent then required by the DGCL,~~ Surviving Corporation to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) ~~The~~ Notwithstanding any provision in this Section 5.08, neither Parent nor the Surviving Corporation shall be obligated to provide any indemnification, or advance any expenses, to, or hold harmless, any D&O Indemnified Party in connection with any Covered D&O Matter: (i) for which payment has actually been made to or on behalf of such D&O Indemnified Party under any insurance policy, including any insurance policy referred to in this Section 5.08, or other indemnity provision, except with respect to any excess beyond the aggregate amount paid under any such insurance policy or other indemnity provision; (ii) for an accounting of profits made from the “purchase and sale” (or “sale and purchase”) by such D&O Indemnified Party of securities of Parent or the Company (within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law); or (iii) in connection with any Covered D&O Matter (or any part of any Covered D&O Matter) initiated by such D&O Indemnified Party, including any Covered D&O Matter (or any part of any Covered D&O Matter) initiated (including by means of cross-claim or counterclaim) by such D&O Indemnified Party against Parent or the Surviving Corporation or its directors, officers, employees or other indemnitees, unless the board of directors of Parent or the Surviving Corporation, as the case may be, authorized such Covered D&O Matter (or any part of any Covered D&O Matter) prior to its initiation. (c) Except as may be required by applicable Law, the provisions of the ~~Organizational Documents~~ certificate of incorporation and bylaws of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are presently set forth in the ~~Organizational Documents~~ certificate of incorporation and bylaws of Parent ~~as of the date of this Agreement~~ shall not be amended, modified or repealed for a period of six ~~(6)~~ years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation shall contain, and Parent shall cause the ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~Parent. (cd) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective ~~Time~~ Time, and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (de) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a ~~six (6)-year~~ six-year prepaid “tail policy” (in form and substance reasonably satisfactory to the ~~“D&O Tail Policy”)~~ Company for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six ~~(6)~~ years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective ~~Time. During the term~~ Time with respect to any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of ~~the D&O Tail Policy,~~ duty or any matter claimed against a director or officer of Parent ~~shall not take any action following~~ by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time ~~to cause~~ (including in connection with this Agreement or the ~~D&O Tail Policy to be cancelled~~ Contemplated Transactions or ~~any provision therein to be amended or waived~~ in ~~any manner that would adversely affect in any material respect the rights~~ connection with Parent’s initial public offering of ~~their former and current officers and directors~~shares of Parent Common Stock). (ef) From and after the Effective Time, Parent or the Surviving Corporation, as the case may be, shall pay all reasonable expenses, including reasonable attorneys’ fees, that are incurred by the ~~persons~~ current or former officers or directors of Parent or the Company referred to in this Section ~~5.7~~ 5.08 in connection with their ~~successful~~ enforcement of the rights provided to such persons ~~in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts~~ against Parent or ~~omissions occurring at or prior to~~ the ~~Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees~~Surviving Corporation, as the case may be, in this Section 5.08, unless a court of ~~Parent~~ competent jurisdiction determines that each of the material assertions made by such person as a basis for such purported enforcement were not made in good faith or ~~the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect.~~ were frivolous. (g) The provisions of this Section ~~5.7~~ 5.08 are intended to be in addition to the rights otherwise available to the current ~~and~~ or former officers ~~and~~ or directors of Parent ~~and~~ or the Company by ~~Law~~law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (gh) ~~From and after the Effective Time, in~~ In the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~5.08. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person5.08.

Appears in 1 contract

Samples: Merger Agreement (Conatus Pharmaceuticals Inc.)

Indemnification of Officers and Directors. ~~(a)~~ From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of ~~Parent~~ Apricus and the Surviving ~~Corporation, jointly and severally,~~ Corporation shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Apricus or the ~~Company and their respective Subsidiaries~~Company, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ Apricus or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in ~~each case~~the case of the Company, to the fullest extent permitted under ~~applicable Law~~the DGCL for directors or officers of Delaware corporations and, in the case of Apricus, to the fullest extent permitted under the NRS for directors and officers of Nevada corporations, as applicable. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of ~~Parent~~ Apricus and the Surviving Corporation, jointly and severally, upon receipt by ~~Parent~~ Apricus or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to ~~Parent~~Apricus, to the extent then required by the ~~DGCL~~66 Exhibit 2.1 NRS, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) From and after the Effective Time, in the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person

Appears in 1 contract

Samples: Merger Agreement

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of Parent and the Surviving ~~Corporation, jointly and severally,~~ Entity shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, manager, officer, fiduciary or agent of Parent or the Company ~~and their respective Subsidiaries~~(collectively, ~~respectively (~~the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director, manager, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable ~~Law~~Law (a “Covered Matter”). Each D&O Indemnified Party will be entitled to advancement of reasonable expenses incurred in the defense of any ~~such claim, action, suit, proceeding or investigation~~ Covered Matter from each of Parent and the Surviving ~~Corporation~~Entity, jointly and severally, upon receipt by Parent or the Surviving ~~Corporation~~ Entity from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to ~~Parent, to~~ Parent and the ~~extent then required by the DGCL,~~ Surviving Entity to repay such advances if it is ultimately determined that such person is not entitled to indemnification. Notwithstanding anything to the contrary in this Section 5.6, neither Parent nor the Surviving Entity shall be obligated to provide any indemnification, or advance any expenses, to, or hold harmless, any D&O Indemnified Party in connection with any Covered Matter: (i) for which payment has actually been made to or on behalf of such D&O Indemnified Party under any insurance policy or other indemnity provision, except with respect to any excess beyond the aggregate amount paid under any such insurance policy or other indemnity provision; (ii) for an accounting of profits made from the “purchase and sale” (or “sale and purchase”) by such D&O Indemnified Party of securities of Parent or the Company (within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law); or (iii) in connection with any Covered Matter (or any part of any Covered Matter) initiated by such D&O Indemnified Party, including any Covered Matter (or any part of any Covered Matter) initiated (including by means of cross-claim or counterclaim) by such D&O Indemnified Party against Parent or the Surviving Entity or its directors, officers, employees or other indemnitees, unless the board of directors of Parent or the Surviving Entity, as the case may be, authorized such Covered Matter (or any part of any Covered Matter) prior to its initiation. (b) ~~The~~ Except as may be required by applicable Law, the provisions of the ~~Organizational Documents~~ certificate of incorporation and bylaws of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are presently set forth in the ~~Organizational Documents~~ certificate of incorporation and bylaws of Parent ~~as of the date of this Agreement~~ shall not be amended, modified or repealed for a period of six ~~(6)~~ years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving ~~Corporation~~ Entity shall contain, and Parent shall cause the ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving ~~Corporation~~ Entity to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~Parent. (c) From and after the Effective Time, (i) the Surviving ~~Corporation~~ Entity shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent~~. In addition, Parent shall purchase, prior~~ . (e) Prior to the Effective Time, ~~a six (6)-year~~ Parent may purchase an up to six-year prepaid “tail policy” ~~(the “D&O Tail Policy”)~~ for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of up to at least six ~~(6)~~ years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective ~~Time. During the term~~ Time with respect to any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of ~~the D&O Tail Policy,~~ duty or any matter claimed against a director or officer of Parent ~~shall not take any action following~~ by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time ~~to cause~~ (including in connection with this Agreement or the ~~D&O~~ Contemplated Transactions) (the “Tail ~~Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors~~Policy”). (ef) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the ~~persons~~ current or former officers or directors of Parent or the Company referred to in this Section ~~5.7~~ 5.6 in connection with their ~~successful~~ enforcement of the rights provided to such persons in this Section ~~5.7~~5.6 against Parent in this Section 5.6, unless a court of competent jurisdiction determines that each of the material assertions made by such person as a basis for such purported enforcement were not made in good faith or were frivolous. (fg) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 5.6 are intended to be in addition to the rights otherwise available to the current ~~and~~ or former officers ~~and~~ or directors of Parent ~~and~~ or the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (gh) ~~From and after the Effective Time, in~~ In the event Parent or the Surviving ~~Corporation~~ Entity or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving ~~corporation~~ entity or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving ~~Corporation~~Entity, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~5.6. Parent shall cause the Surviving ~~Corporation~~ Entity to perform all of the obligations of the Surviving ~~Corporation~~ Entity under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person5.6.

Appears in 1 contract

Samples: Merger Agreement (NTN Buzztime Inc)

Indemnification of Officers and Directors. (a) ~~From~~ The Surviving Company and its Subsidiaries shall, and Parent shall cause the ~~Effective Time through~~ Surviving Company and its Subsidiaries to, honor and fulfill in all respects the ~~sixth (6th) anniversary~~ obligations of the ~~date on which the Effective Time occurs, each~~ Company or any of ~~Parent~~ its Subsidiaries under any and ~~the Surviving Corporation, jointly and severally, shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes~~ all indemnification agreements in effect immediately prior to the Effective ~~Time, a director, officer, fiduciary or agent of Parent or~~ Time between the Company or any of its Subsidiaries and any of their respective ~~Subsidiaries, respectively~~ current or former directors and officers and any person who becomes a director or officer of the Company or any of its Subsidiaries prior to the Effective Time (the “~~D&O~~ Indemnified Parties”). In addition, against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out for a period of ~~or pertaining to the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after~~ six (6) years following the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving ~~Corporation~~Company and its Subsidiaries shall, ~~jointly~~ and ~~severally, upon receipt by~~ Parent or shall cause the Surviving ~~Corporation from the D&O Indemnified Party~~ Company and its Subsidiaries to, cause their respective certificates of ~~a request therefor; provided that any such person~~ incorporation and bylaws (and other similar organizational documents) to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The contain provisions ~~of the Organizational Documents of Parent~~ with respect to indemnification, advancement of expenses and exculpation ~~of present and former directors and officers of Parent~~ that are ~~set forth in~~ at least as favorable as the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation ~~of present and former directors and officers as those set forth~~ provisions contained in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws (or other similar organizational documents) of the ~~date of this Agreement. (c) From and after~~ Acquired Companies immediately prior to the Effective Time, and during such six (i6)-year period, such provisions shall not be amended, repealed or otherwise modified in any respect except as and to the extent required by Applicable Law. (b) Prior to the ~~Surviving Corporation shall fulfill and honor in all respects the obligations of~~ Effective Time, the Company ~~to its~~ shall purchase a six (6)-year “tail” prepaid policy (the “D&O ~~Indemnified Parties as~~ Tail Policy”) on the existing policy of ~~immediately prior to the Closing pursuant to any indemnification provisions under~~ the Company’s ~~Organizational Documents~~ directors’ and ~~pursuant~~ officers’ liability insurance (the “D&O Policy”), in a form mutually acceptable to ~~any indemnification agreements between~~ the Company and ~~such D&O Indemnified Parties~~Parent, ~~with respect to~~ covering claims arising ~~out of matters occurring~~ from facts or events that occurred at or prior to the Effective Time and ~~(ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O~~ covering each Indemnified ~~Parties~~ Party who is covered as of ~~immediately prior to~~ the ~~Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such~~ Effective Time by the D&O ~~Indemnified Parties,~~ Policy on terms with respect to ~~claims arising out of matters occurring at or prior to~~ coverage and amounts that are no less favorable than those terms in effect on the ~~Effective Time~~date hereof on terms and conditions no less advantageous than the D&O Policy. (dc) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 6.05 (i) shall survive consummation of the Mergers, (ii) are intended to be ~~in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate~~ for the benefit of, and ~~shall~~ will be enforceable by, ~~each of~~ the ~~D&O~~ Indemnified Parties, ~~their~~ his or her heirs and ~~their representatives.~~ his or her representatives and (giii) ~~From~~ are in addition to, and ~~after the Effective Time~~not in substitution for, ~~in the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into~~ any other ~~Person and shall not be the continuing~~ rights to indemnification or ~~surviving corporation or entity of~~ contribution that any such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party may have by contract or ~~other person~~otherwise.

Appears in 1 contract

Samples: Merger Agreement (Intuit Inc)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of Intec Parent and the Surviving ~~Corporation~~Corporation shall, jointly and severally, ~~shall~~ indemnify and hold harmless each person who is ~~now, or has been at any time prior to~~ as of the date hereof, or who becomes prior to the Effective ~~Time~~Time in accordance herewith, a ~~director~~director or officer of Intec, ~~officer, fiduciary or agent of~~ Intec Parent or Decoy, as the ~~Company and their respective Subsidiaries~~case may be (collectively, ~~respectively (~~the “D&O Indemnified Parties”), and Intec Parent and the Surviving Corporation shall, jointly and severally, indemnify and hold harmless each D&O Indemnified Party against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including reasonable attorneys’ fees and disbursements, actually incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director~~director or officer of Intec, ~~officer, fiduciary or agent of~~ Intec Parent or of Decoy prior to the ~~Company~~Effective Time, ~~whether~~ which is asserted or claimed prior to, at at, or after the Effective Time, in each case, to the fullest extent permitted under applicable ~~Law~~Legal Requirements (a “Covered D&O Matter”). Each D&O Indemnified Party will be entitled to advancement of reasonable expenses actually incurred in the defense of any ~~such claim, action, suit, proceeding or investigation~~ Covered D&O Matter from ~~each of~~ Intec Parent and the Surviving Corporation, jointly and severally, upon receipt by Intec Parent or the Surviving ~~Corporation~~ Corporation, as the case may be, from the D&O Indemnified Party of a request therefor, such request shall reasonably evidence the expenses incurred by D&O Indemnified Party; provided that any such person to whom expenses are advanced provides an undertaking ~~to Parent~~to, to Intec Parent and the ~~extent then required by the DGCL,~~ Surviving Corporation to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) ~~The~~ Notwithstanding any provision in this Section ‎5.19, none of Intec, Intec Parent, or the Surviving Corporation shall be obligated to provide any indemnification, or advance any expenses, to, or hold harmless, any D&O Indemnified Party in connection with any Covered D&O Matter: (i) for which payment has actually been made to or on behalf of such D&O Indemnified Party under any insurance policy, including any insurance policy referred to in this Section ‎5.19, or other indemnity provision, except with respect to any excess beyond the aggregate amount paid under any such insurance policy or other indemnity provision; (ii) for an accounting of profits made from the “purchase and sale” (or “sale and purchase”) by such D&O Indemnified Party of securities of Intec Parent or Decoy (within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law)or (iii) in connection with any Covered D&O Matter (or any part of any Covered D&O Matter) initiated by such D&O Indemnified Party, including any Covered D&O Matter (or any part of any Covered D&O Matter) initiated (including by means of cross-claim or counterclaim) by such D&O Indemnified Party against Intec Parent or the Surviving Corporation or its directors, officers, employees or other indemnitees, unless the board of directors of Intec Parent or the Surviving Corporation, as the case may be, authorized such Covered D&O Matter (or any part of any Covered D&O Matter) prior to its initiation. (c) Except as may be required by applicable Legal Requirements, the provisions of the ~~Organizational Documents~~ certificate of incorporation and bylaws of Intec Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Intec Parent that are presently set forth in the ~~Organizational Documents~~ certificate of incorporation and bylaws of Intec Parent ~~as of the date of this Agreement~~ shall not be amended, modified or repealed for a period of six ~~(6)~~ years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Intec Parent. The ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation shall contain, and Intec Parent shall cause the ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~Intec Parent. (cd) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of ~~the Company~~ Decoy to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under ~~the Company~~Decoy’s ~~Organizational Documents~~ certificate of incorporation, bylaws and pursuant to any indemnification agreements between ~~the Company~~ Decoy and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective ~~Time~~ Time, and (ii) Intec Parent shall fulfill and honor in all respects the obligations of Intec Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Intec Parent’s ~~Organizational Documents~~ certificate of incorporation, bylaws and pursuant to any indemnification agreements between Intec Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (de) From and after the Effective Time, Intec Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Intec Parent, and shall not terminate or modify in an manner adverse to the D&O Indemnified Parties the Intec Parent D&O Indemnification Agreements. In addition, Intec Parent ~~shall~~ (i) may purchase, prior to the Effective Time, a ~~six (6)-year~~ six-year prepaid “tail policy” ~~(the “D&O Tail Policy”)~~ in form and substance reasonably satisfactory to Decoy for the non-cancellable extension of the directors’ and officers’ liability coverage of Intec Parent’s existing directors’ and officers’ insurance ~~policies~~ policies, and (ii) shall purchase, prior to the Effective Time, a six-year prepaid “tail policy” in form and substance reasonably satisfactory to Decoy for the non-cancellable extension of the directors’ and officers’ liability coverage of Decoy’s existing directors’ and officers’ insurance policies, in each case for a claims reporting or discovery period of at least six ~~(6)~~ years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective ~~Time. During the term~~ Time with respect to any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of ~~the D&O Tail Policy~~duty or any matter claimed against a director or officer of Intec Parent or Decoy, ~~Parent shall not take any action following~~ as applicable, by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time ~~to cause~~ (including in connection with this Agreement or the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directorsTransactions). (ef) From and after the Effective Time, Intec Parent or the Surviving Corporation, as the case may be, shall pay all reasonable expenses, including reasonable attorneys’ fees, that are incurred by the ~~persons~~ current or former officers or directors of Intec Parent or Decoy referred to in this Section ~~5.7~~ ‎5.19 in connection with their ~~successful~~ enforcement of the rights provided to such persons ~~in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts~~ against Intec Parent or ~~omissions occurring at or prior to~~ the ~~Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees~~Surviving Corporation, as the case may be, in this Section ‎5.19, unless a court of ~~Parent~~ competent jurisdiction determines that each of the material assertions made by such person as a basis for such purported enforcement were not made in good faith or ~~the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect.~~ were frivolous. (g) The provisions of this Section ~~5.7~~ ‎5.19 are intended to be in addition to the rights otherwise available to the current ~~and~~ or former officers ~~and~~ or directors of Intec Parent ~~and the Company~~ or Decoy by ~~Law~~law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (gh) ~~From and after the Effective Time, in~~ In the event Intec Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Intec Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~‎5.19. Intec Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person‎5.19.

Appears in 1 contract

Samples: Merger Agreement (Intec Pharma Ltd.)

Indemnification of Officers and Directors. (a) From and after the Effective ~~Time through the sixth (6th) anniversary of the date on which the Effective Time occurs~~Time, ~~each of Parent and~~ Xxxxxx agrees that it shall cause the Surviving ~~Corporation, jointly and severally, shall~~ Corporation to indemnify and hold harmless each ~~person who is now~~present and former (in each case, ~~or has been at any time prior to the date hereof, or who becomes prior to~~ as of the Effective Time~~, a~~ ) director, ~~officer~~officer and manager (or similar individual) of the Acquired Companies (each, ~~fiduciary~~ an “Indemnitee”) against any costs or ~~agent of Parent or the Company and their respective Subsidiaries, respectively~~ expenses (~~the “D&O Indemnified Parties”~~including reasonable attorneys’ fees), ~~against all claims~~judgments, fines, losses, ~~liabilities~~claims, ~~damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements,~~ damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to ~~the fact that the D&O Indemnified Party is~~ matters existing or was a director, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the ~~Closing~~Effective Time, ~~now existing in favor of~~ to the ~~current or former directors, officers or employees~~fullest extent that the Acquired Companies, as the case may be, would have been permitted under or required by Applicable Law and their respective certificates of incorporation, bylaws, indemnification agreements made available to Parent prior to the date hereof or other organizational documents in effect on the date of this Agreement to indemnify such person. In the event of any such claim, action, suit, proceeding or investigation, (i) the Surviving Corporation shall have the right to control the defense thereof after the Effective Time (it being understood that, by electing to control the defense thereof, the Surviving Corporation will be deemed to have waived any right to object to the Indemnitee’s entitlement to indemnification hereunder with respect thereto), and (ii) no Indemnitee shall be liable for any settlement effected without his or her prior express written consent. Parent also agrees to cause the Surviving Corporation to promptly advance reasonable and documented out-of-pocket expenses as incurred by each Indemnitee to the fullest extent permitted under or required by Applicable Law and their respective certificates of incorporation, bylaws, indemnification agreements made available to Parent prior to the date hereof or other organizational documents in effect on the date of this Agreement; provided that the Person to whom expenses are advanced shall provide a customary undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification. Without limiting the foregoing, Parent shall cause the Acquired Companies (i) to maintain for a period of not less than six (6) years from the Effective Time provisions in their respective certificates of incorporation, bylaws and other organizational documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of the Indemnitees that are no less favorable to those Persons than the provisions of the certificates of incorporation, bylaws, indemnification agreements, and other organizational documents of the Acquired Companies, as applicable, in each case, as of the date of this Agreement and (ii) not to amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Applicable Law. (b) For a period of six (6) years from the Effective Time, Parent shall cause the Surviving Corporation to maintain in effect directors’ and officers’ liability insurance covering those Persons who are currently covered by the Acquired Companies’ directors’ and officers’ liability insurance policies on terms not less favorable than the terms of such current insurance coverage; provided, however, that (i) the Company shall (in consultation with Parent) and (if the Company does not) Parent may cause the Surviving Corporation to cause coverage to be extended under the current directors’ and officers’ liability insurance by obtaining at or prior to the Closing Date a prepaid, non-cancelable six (6)-year “tail” policy (containing terms not less favorable than the terms of such current insurance coverage) with respect to matters existing or occurring at or prior to the Effective Time, (ii) the provisions of the foregoing sentence in this Section 7.04(b) shall be deemed to have been satisfied if prepaid “tail” policies have been obtained by the Company on or prior to the Effective Time, which policies provide such Persons who are currently covered by the Acquired Companies’ directors’ and officers’ liability insurance policies with coverage for an aggregate period of six (6) years with respect to acts or omissions occurring or alleged to have occurred prior to the Effective Time that were committed or alleged to have been committed by such Persons who are currently covered by the Acquired Companies’ directors’ and officers’ liability insurance policies in coverage and amount no lesser than the policies currently in place so long as the total premiums paid would not exceed 300% of the last annual premium paid for the Company’s directors and officers liability insurance policies in effect as of the date hereof, it being understood that if the total premium payable for such insurance coverage exceeds such amount, Parent or the ~~Company as provided~~ Surviving Corporation shall obtain a policy with the greatest coverage available for a cost equal to such amount, and (iii) if any Proceeding is asserted or made against those Persons who are currently covered by the Acquired Companies’ directors’ and officers’ liability insurance policies on or prior to the sixth (6th) year anniversary of the Effective Time, any insurance required to be maintained under this Section 7.04 shall be continued in ~~their respective Organizational Documents or~~ respect of such claim until the final disposition thereof. (c) Notwithstanding anything contained in ~~any agreement~~ this Agreement to the contrary, this Section 7.04 shall survive the consummation of the Merger indefinitely and shall ~~continue in full force~~ be binding, jointly and ~~effect. The provisions of this Section 5.7 are intended to be in addition to~~ severally, on the ~~rights otherwise available to the current~~ successors and ~~former officers and directors~~ assigns of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) From and after the Effective Time, in Surviving Corporation. In the event that Parent or the Surviving Corporation or any of their respective successors or assigns ~~(i)~~ consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or ~~merger,~~ merger or ~~(ii)~~ transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~7.04. In addition, Parent and the Surviving Corporation shall not distribute, sell, transfer or otherwise dispose of any of its assets in a manner that would reasonably be expected to render the Surviving Corporation unable to satisfy its obligations under this Section 7.04. (d) Parent shall assume, and be jointly and severally liable for, and shall cause the ~~Surviving Corporation~~ Acquired Companies to ~~perform all~~ honor, each of the ~~obligations of the Surviving Corporation under this Section 5.7. The obligations set forth~~ covenants in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person7.04.

Appears in 1 contract

Samples: Merger Agreement (Syneos Health, Inc.)

Indemnification of Officers and Directors. (a) ~~From~~ In the event any action, suit, proceeding or investigation relating hereto or to the transactions contemplated hereby is commenced, whether before or after the Effective ~~Time through~~ Time, the ~~sixth (6th) anniversary~~ parties hereto agree to cooperate and use their best efforts to defend against and respond thereto. It is understood and agreed that PCI and AI shall, to the fullest extent permitted under applicable law or contract, and regardless of whether the ~~date on which the Effective Time occurs~~Merger becomes effective, ~~each of Parent and the Surviving Corporation, jointly and severally, shall~~ indemnify and hold harmless ~~each person who is now~~(and shall advance expenses to), ~~or has been at any time prior to the date hereof, or who becomes prior to~~ and after the Effective Time, a the Surviving Corporation and AI shall, to the fullest extent permitted under applicable law, indemnify and hold harmless (and shall advance expenses to), each past and present director, officer, employee, fiduciary or and agent of ~~Parent~~ PCI or AI, including, without limitation, officers and directors serving as such on the ~~Company and their respective Subsidiaries~~date hereof (collectively, ~~respectively (~~the ~~“D&O~~ "Indemnified Parties”") against any costs or expenses (including reasonable attorneys' fees), ~~against all claims~~judgments, fines, losses, ~~liabilities~~claims, damages, ~~judgments, fines~~ liabilities and ~~reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred~~ amounts paid in settlement in connection with any claim, action, suit, proceeding or ~~investigation, whether civil, criminal, administrative or investigative,~~ investigation arising out of or pertaining to ~~the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or~~ any of the ~~Company~~transactions contemplated hereby, ~~whether asserted~~ including a breach of a representation or ~~claimed prior to~~warranty contained herein by any party which causes, at contributes to or ~~after the Effective Time~~results in any such claim, ~~in each case~~action, ~~to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred~~ suit, proceeding or investigation, and in the ~~defense~~ event of any such claim, action, suit, proceeding or investigation ~~from each~~ (whether arising before or after the Effective Time); (i) PCI and AI shall pay the reasonable fees and expenses of ~~Parent~~ counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to PCI and IA, promptly as statements therefore are received: and (ii) PCI and AI will cooperate in the ~~Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party~~ defense of ~~a request therefor~~any such matter; provided however, that neither PCI nor AI shall be liable for any ~~such person~~ settlement effected without its prior written consent, which consent shall not be unreasonably withheld: and provided further, that neither PCI nor AI shall be obligated pursuant to ~~whom expenses are advanced provides an undertaking~~ this Section 5.03 to ~~Parent,~~ pay the fees and disbursements of more than one counsel and one local counsel for all Indemnified Parties in any single action except to the extent ~~then required by~~ that, in the ~~DGCL~~opinion of counsel for the indemnified Parties, ~~to repay~~ two or more of such ~~advances if it is ultimately determined that~~ Indemnified Parties have conflicting interest in the outcome of such ~~person is not entitled to indemnification~~action. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) From and after the Effective Time, in the event ~~Parent~~ AI or the Surviving Corporation or any of their ~~respective~~ successors or ~~assigns~~ assigns; (i) consolidates with or merges into any other ~~Person~~ person and ~~shall~~ is not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of ~~its~~ their properties and assets to any ~~Person, then, and in each such case~~person, proper ~~provision~~ provisions shall be made so that the successors and assigns of ~~Parent or~~ the Surviving ~~Corporation, as the case may be, shall succeed to~~ Corporation and AI assume the obligations set forth in this Section ~~5.7. Parent~~ 5.03. (c) This section 5.03 shall ~~cause~~ survive any termination of this Agreement and the ~~Surviving Corporation to perform all~~ consummation of the ~~obligations~~ Merger at the Effective Time and is intended to benefit each of the ~~Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O~~ Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other personParties.

Appears in 1 contract

Samples: Merger Agreement (Dolce Ventures, Inc)

Indemnification of Officers and Directors. (a) ~~From~~ For a period of six years from the Effective Time, Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time ~~through~~ (whether asserted or claimed prior to, at or after the Effective Time) now existing in favor of the current or former directors or officers of the Acquired Companies under the certificate of incorporation and bylaws (or other organizational documents) of each of the Acquired Companies, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms and shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any Indemnified Person (as defined below), and Parent shall cause the Acquired Companies to perform their obligations thereunder. Without limiting the foregoing, during the period commencing at the Effective Time and ending on the sixth ~~(6th)~~ anniversary of the ~~date on which~~ Effective Time, Parent shall cause the ~~Effective Time occurs~~Surviving Corporation and its Subsidiaries to, ~~each of Parent~~ and the Surviving ~~Corporation~~Corporation agrees that it will, ~~jointly and severally, shall~~ indemnify and hold harmless each ~~person~~ individual who is ~~now, or has been at any time prior to~~ as of the date ~~hereof~~of this Agreement, or who becomes prior to the Effective Time, a ~~director~~director or officer of any Acquired Company or who is as of the date of this Agreement, ~~officer~~or who thereafter commences prior to the Effective Time, ~~fiduciary~~ serving at the request of any Acquired Company as a director or ~~agent~~ officer of ~~Parent or the Company and their respective Subsidiaries, respectively~~ another Person (the “~~D&O~~ Indemnified ~~Parties~~Persons”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, ~~suit, proceeding~~ suit or ~~investigation~~proceeding, whether civil, criminal, administrative or ~~investigative~~investigative (including with respect to matters existing or occurring at or prior to the Effective Time, including this Agreement and the transactions and actions contemplated hereby), arising out of or pertaining to the fact that the ~~D&O~~ Indemnified ~~Party~~ Person is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ any Acquired Company or is or was serving at the request of ~~the Company~~any Acquired Company as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under applicable ~~Law~~Legal Requirements. ~~Each D&O~~ In the event of any such claim, action, suit or proceeding, (x) each Indemnified ~~Party~~ Person will be entitled to advancement of expenses incurred in the defense of any such claim, action, ~~suit~~suit or proceeding from Parent, ~~proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or~~ the Surviving Corporation ~~from~~ or its Subsidiaries, as applicable, in accordance with the ~~D&O Indemnified Party~~ organizational documents, in each case as in effect on the date of ~~a request therefor~~this Agreement, as applicable, as in effect on the date of this Agreement; provided that any ~~such person~~ Indemnified Person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, if and only to the extent ~~then~~ required by the ~~DGCL~~DGCL or the Surviving Corporation’s or any of its Subsidiaries’ certificate of incorporation or bylaws (or comparable organizational documents) or any such indemnification or other similar agreements, as applicable, to repay such advances if it is ultimately determined by final adjudication that such ~~person~~ Indemnified Person is not entitled to ~~indemnification~~indemnification and (y) Parent, the Surviving Corporation and its Subsidiaries, as applicable, shall reasonably cooperate in the defense of any such matter. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for For a period of six ~~(6)~~ years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent and the Surviving Corporation shall ~~maintain~~ either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance ~~policies, with an effective date as~~ maintained by or for the benefit of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) Acquired Companies or provide substitute policies for the ~~non-cancellable extension of~~ Acquired Companies and their current and former directors and officers who are currently covered by the directors’ and officers’ liability insurance coverage currently maintained by or for the benefit of ~~Parent’s~~ the Acquired Companies, in either case, of not less than the existing coverage and having other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance ~~policies~~ coverage currently maintained by or for a the benefit of the Acquired Companies with respect to claims ~~reporting~~ arising from facts or ~~discovery period of~~ events that occurred at ~~least six (6) years from and after~~ or before the Effective Time (with insurance carriers having at least an “A” rating by A.M. Best with respect to ~~any claim related~~ directors’ and officers’ liability insurance), except that in no event shall Parent or the Surviving Corporation be required to ~~any period~~ pay with respect to such insurance policies an annual premium greater than 300% of ~~time at or~~ the aggregate annual premium most recently paid by the Acquired Companies prior to the ~~Effective Time~~date of this Agreement (the “Maximum Amount”), and if the Surviving Corporation is unable to obtain the insurance required by this Section 6.05(b) it shall obtain as much comparable insurance as possible for the years within such six year period for a premium equal to the Maximum Amount. ~~During~~ In lieu of such insurance, prior to the ~~term~~ Closing Date the Company may purchase a “tail” directors’ and officers’ liability insurance policy for the Acquired Companies and their current and former directors and officers who are currently covered by the directors’ and officers’ liability insurance coverage currently maintained by or for the benefit of the ~~D&O Tail Policy~~Acquired Companies, ~~Parent shall~~ such tail to provide coverage in an amount not ~~take any action following~~ less than the ~~Effective Time~~ existing coverage and to ~~cause~~ have other terms not less favorable to the ~~D&O Tail Policy~~ insured persons than the directors’ and officers’ liability insurance coverage currently maintained by the Acquired Companies with respect to ~~be cancelled~~ claims arising from facts or ~~any provision therein to be amended~~ events that occurred at or ~~waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after~~ before the Effective Time, ; provided that in no event shall the cost of any such tail policy exceed the Maximum Amount. Parent and the Surviving Corporation shall ~~pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to~~ maintain such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue policies in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and ~~shall operate for~~ continue to honor the ~~benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives~~obligations thereunder. (gc) ~~From and after the Effective Time, in~~ In the event ~~Parent or the Surviving Corporation~~ that any Acquired Company or any of ~~their~~ its respective successors or assigns (i) consolidates with or merges into any other Person and ~~shall~~ is not be the continuing or surviving corporation or ~~entity~~ Entity of such consolidation or ~~merger,~~ merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, such Acquired Company, as applicable, shall cause proper provision ~~shall~~ to be made so that the successors and assigns of ~~Parent or the Surviving Corporation, as the case may be, shall succeed to~~ such Acquired Company assume the obligations set forth in this Section ~~5.7. Parent~~ 6.05. (d) The provisions of this Section 6.05(i) shall ~~cause~~ survive the ~~Surviving Corporation~~ acceptance of Shares for payment pursuant to ~~perform all~~ the Offer and the consummation of the ~~obligations of~~ Merger and (ii) are intended to be for the ~~Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not~~ benefit of, and will be ~~terminated~~enforceable by, ~~amended~~ each indemnified or ~~otherwise modified in any manner that adversely affects any D&O~~ insured party (including the Indemnified ~~Party~~Persons), his or ~~any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs~~ her heirs, successors, assigns and representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification, advancement of expenses, exculpation or contribution that any such Person may have by contract or otherwise. This Section 6.05 may not be amended, altered or repealed after the Offer Acceptance Time in such a manner as to adversely affect the rights of any Indemnified Person or any of their successors, assigns or heirs without the prior written consent of ~~such~~ the affected ~~D&O~~ Indemnified ~~Party or other person~~Person.

Appears in 1 contract

Samples: Merger Agreement (Immunomedics Inc)

Indemnification of Officers and Directors. (a) From the First Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the First Effective Time occurs, each of Parent and the Surviving ~~Corporation, jointly and severally,~~ Entity shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the First Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of Parent or the Company ~~and~~ or any of their respective Subsidiaries, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of Parent or of the Company, ~~whether~~ or any Subsidiary thereof, asserted or claimed prior ~~to, at or after~~ to the First Effective Time, in each case, to the fullest extent permitted under applicable Law. ~~Each~~ Except in the case of fraud and willful misconduct, each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving ~~Corporation~~Entity, jointly and severally, upon receipt by Parent or the Surviving ~~Corporation~~ Entity from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the ~~DGCL~~DGCL or DLLCA, as applicable, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the ~~Organizational Documents~~ certificate of incorporation and bylaws of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are presently set forth in the ~~Organizational Documents~~ certificate of incorporation and bylaws of Parent ~~as of the date of this Agreement~~ shall not be amended, modified or repealed for a period of six ~~(6)~~ years from the First Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the First Effective Time, were officers or directors of Parent, unless such modification is required by applicable Law. The ~~Organizational Documents~~ certificate of formation and limited liability company agreement of the Surviving ~~Corporation~~ Entity shall contain, and Parent shall cause the ~~Organizational Documents~~ certificate of formation and limited liability company agreement of the Surviving ~~Corporation~~ Entity to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~Parent. (c) From and after the First Effective Time, (i) the Surviving ~~Corporation~~ Entity shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the First Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the First Effective Time. (d) From and after the First Effective Time, Parent shall continue to maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the First Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section ~~5.7~~ 5.5 in connection with their successful enforcement of the rights provided to such persons in this Section ~~5.7~~5.5. (fe) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 5.5 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (gf) ~~From and after the Effective Time, in~~ In the event Parent or the Surviving ~~Corporation~~ Entity or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving ~~Corporation~~Entity, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~5.5. Parent shall cause the Surviving ~~Corporation~~ Entity to perform all of the obligations of the Surviving ~~Corporation~~ Entity under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person5.5.

Appears in 1 contract

Samples: Merger Agreement (BiomX Inc.)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of Parent and the Surviving ~~Corporation, jointly and severally,~~ Corporation shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, fiduciary or agent of Parent or the Company and their respective Subsidiaries, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the ~~Company~~Company or their respective Subsidiaries, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of ~~the~~ Parent’s Organizational Documents ~~of Parent~~ with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are presently set forth in the ~~Organizational Documents~~ certificate of incorporation and bylaws of Parent ~~as of the date of this Agreement~~ shall not be amended, modified or repealed for a period of six ~~(6)~~ years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation shall contain, and Parent shall cause the ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~Parent. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, ~~Parent shall purchase,~~ prior to the Effective Time, Parent and the Company shall make equal payments to the applicable insurers in full satisfaction of the premium for a ~~six (6)-year~~ six-year prepaid “tail policy” ~~(the “D&O Tail Policy”)~~ for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six ~~(6)~~ years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective ~~Time. During~~ Time (the ~~term of the~~ “D&O Tail Policy, ”). Parent and the Company shall ~~not take any action following~~ pay their respective portions of the ~~Effective Time to cause~~ premium for the D&O Tail Policy within five Business Days of Parent’s delivery of a written request for the Company’s portion of the payment to be ~~cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors~~made. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement~~, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives~~. (g) ~~From and after the Effective Time, in~~ In the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. . (h) The ~~obligations set forth in~~ provisions of this Section 5.7 are intended to be for the benefit of, and shall ~~not~~ be ~~terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary~~ enforceable by each officer and director entitled to indemnification under ~~the policies referred to in~~ this Section ~~5.7 and their~~ 5.7, his or her heirs and ~~representatives~~his or her representatives and are in addition to, ~~without the prior written consent of~~ and not in substitution for, any other rights to indemnification or contribution that any such ~~affected D&O Indemnified Party~~ Person may have by contract or ~~other person~~otherwise.

Appears in 1 contract

Samples: Merger Agreement (Gemphire Therapeutics Inc.)

Indemnification of Officers and Directors. (a) ~~From the Effective Time through~~ Until the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of Parent and the Surviving Corporation, jointly and severally, shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, fiduciary or agent of Parent or the Company and their respective Subsidiaries, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to ParentClosing Date, to the extent ~~then required~~ not prohibited by applicable Law, Buyer shall take all action within its control to cause the ~~DGCL,~~ Company to ~~repay such advances if it is ultimately determined that such person is not entitled~~ continue to ~~indemnification.~~ honor its obligations (~~b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are~~ as set forth in the Organizational Documents of ~~Parent as~~ the Company) with respect to the exculpation and indemnification of, and the advancement of expenses to, any of Seller’s current or former designees on the ~~date of this Agreement shall not be amended~~Company Board (collectively, ~~modified~~ the “Covered Persons”) arising or ~~repealed for a period of six (6) years~~ resulting from ~~the Effective Time in a manner that would adversely affect the rights thereunder of individuals who,~~ any actions or omissions at or prior to the ~~Effective Time, were officers or directors of Parent. The Organizational Documents of~~ Closing (including the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of matters contemplated by this Agreement). (cb) ~~From and after~~ In the ~~Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of~~ event the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (g) From and after the Effective Time, in the event Parent or the Surviving Corporation or any of ~~their respective~~ its successors or assigns ~~(i) consolidates with~~ consolidate or ~~merges~~ merge into any other Person and shall not be the continuing or surviving ~~corporation~~ company or entity of such consolidation or ~~merger,~~ merger or ~~(ii)~~ converts into any other Person or transfers all or substantially all of its properties and assets to any Person, then, and in each such case, ~~proper provision~~ Buyer shall ~~be made so that~~ use commercially reasonable efforts to take reasonable actions within its control to cause the successors and assigns of ~~Parent or~~ the ~~Surviving Corporation, as the case may be, shall succeed~~ Company to assume the obligations set forth in this Section ~~5.7. Parent shall cause~~ 6.2. (c) Until the ~~Surviving Corporation to perform all~~ sixth anniversary of the Closing Date, the obligations of ~~the Surviving Corporation~~ Buyer under this Section ~~5.7~~6.2 shall not be terminated or modified in such a manner as to adversely affect any of the Covered Persons without the consent of such Person (it being expressly agreed that each of the Covered Persons is intended to be a third-party beneficiary of this Section 6.2 with full rights of enforcement as if a party hereto). The ~~obligations set forth~~ rights of each Covered Person hereunder shall be in addition to any other rights the Covered Persons may have under the Organizational Documents of the Company, under any and all indemnification agreements of or entered into by the Company, or applicable Law (whether at law or in equity). (d) Notwithstanding anything to the contrary herein, Buyer shall have no obligation with respect to the matters contemplated in this Section ~~5.7 shall not be terminated, amended~~ 6.2 in connection with any Claim or ~~otherwise modified in~~ Proceeding directed against any ~~manner that adversely affects any D&O Indemnified Party,~~ Covered Person by Seller or any ~~person who is~~ of its Affiliates to the extent such Covered Person was a ~~beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives~~director, ~~without the prior written consent~~ officer, employee, member or partner of ~~such affected D&O Indemnified Party~~ any of Seller or ~~other person~~its Affiliates.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Kinetik Holdings Inc.)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of ~~Parent~~ TPT and the Surviving ~~Corporation~~Corporation shall, jointly and severally, ~~shall~~ indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent or the Company and their respective Subsidiaries, respectively~~ TPT (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or LEGAL_US_W # 62319343.5 -58- investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent or of the Company~~TPT, whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under ~~applicable Law~~the DGCL for directors or officers of Delaware corporations; provided, however, that this Section 4.19 shall not apply to any Costs incurred in connection with, arising out of, or pertaining to any of the Lawsuits. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of ~~Parent~~ TPT and the Surviving Corporation, jointly and severally, upon receipt by ~~Parent~~ TPT or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any ~~such person~~ Person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such ~~person~~ Person is not entitled to indemnification. (b) The ~~provisions~~ certificate of incorporation and bylaws of each of TPT and the Surviving Corporation shall contain, and TPT shall cause the certificate of incorporation and bylaws of the ~~Organizational Documents of Parent~~ Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent that~~ TPT than are presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~ TPT, which provisions shall not be amended, modified or repealed for a period of six ~~(6)~~ years time from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this AgreementTPT. (c) ~~From and after the Effective Time, (i) the Surviving Corporation~~ Raptor shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability purchase an insurance ~~policies~~policy, with an effective date as of the Closing, which maintains in effect for six years from the Closing ~~Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to~~ the ~~Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the~~ current directors’ and officers’ liability ~~coverage of Parent’s existing directors’ and officers’~~ insurance policies ~~for a claims reporting or discovery period~~ maintained by TPT (provided that Raptor may substitute therefor policies of at least ~~six (6~~$5,000,000 of coverage containing terms and conditions that are not materially less favorable) ~~years from and after the Effective Time~~ with respect to ~~any claim related to any period of time at or~~ matters occurring prior to the ~~Effective Time. During the term of the D&O Tail Policy~~Closing; provided, ~~Parent~~ however, that in no event shall ~~not take any action following the Effective Time~~ Raptor be required to ~~cause the D&O Tail Policy~~ expend pursuant to ~~be cancelled or any provision therein~~ this Section 4.19(c) more than an amount equal to ~~be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors~~$65,000 for such insurance. (ed) ~~From and after the Effective Time, Parent~~ TPT shall pay all expenses, including reasonable attorneys’ fees, that ~~are~~ may be incurred by the persons referred to in this Section ~~5.7~~ 4.19 in connection with their ~~successful~~ enforcement of ~~the~~ their rights provided ~~to such persons~~ in this Section ~~5.7~~4.19. (fe) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 4.19 are intended to be in addition to the rights otherwise available to the current and former officers and directors of ~~Parent and the Company~~ TPT by ~~Law~~law, charter, statute, ~~bylaw~~ by-law or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (gf) ~~From and after the Effective Time, in~~ In the event ~~Parent~~ TPT or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or ~~entity~~ Entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ TPT or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~4.19. ~~Parent~~ LEGAL_US_W # 62319343.5 -59- (g) TPT shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person4.19.

Appears in 1 contract

Samples: Merger Agreement (Raptor Pharmaceuticals Corp.)

Indemnification of Officers and Directors. (a) From the ~~Effective Time~~ Closing Date through the sixth ~~(6th)~~ anniversary of the ~~date on which the Effective Time~~ Closing Date occurs, each of ~~Parent~~ ONCE, ISI and ~~the Surviving Corporation~~DTI shall, jointly and severally, ~~shall~~ indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the ~~Effective Time~~Closing Date, a ~~director~~director or officer of ONCE, ~~officer, fiduciary~~ ISI or ~~agent of Parent or the Company and their respective Subsidiaries, respectively~~ DTI (the “"D&O Indemnified Parties”"), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ ' fees and ~~disbursements~~disbursements (collectively, "Costs"), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director~~director or officer of ONCE, ~~officer, fiduciary~~ ISI or ~~agent of Parent or of the Company~~DTI, whether asserted or claimed prior to, at or after the ~~Effective Time, in each case~~Closing Date, to the fullest extent permitted under ~~applicable Law~~the DGCL for directors or officers of Delaware corporations. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of ~~Parent~~ ONCE, ISI and ~~the Surviving Corporation~~DTI, jointly and severally, upon receipt by ~~Parent or the Surviving Corporation~~ ONCE, ISI and DTI from the D&O Indemnified Party of a request therefor; provided that any ~~such~~ person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The ~~provisions~~ certificate of ~~the Organizational Documents~~ incorporation and bylaws of ~~Parent with respect to indemnification~~each of ONCE, ~~advancement of expenses~~ ISI and ~~exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement~~ DTI shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers ~~as those~~ of each of ONCE, ISI and DTI than are presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ONCE, ISI and DTI which provisions shall not be amended, modified or repealed for a period of six years from the ~~date~~ Closing Date in a manner that would adversely affect the rights thereunder of ~~this Agreement~~individuals who, at or prior to the Closing Date, were officers or directors of ONCE, ISI or DTI. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 5.2 are intended to be in addition to the rights otherwise available to the current and former officers and directors of ~~Parent~~ ONCE, ISI and ~~the Company~~ DTI by ~~Law~~law, charter, statute, ~~bylaw~~ by-law or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives. (gd) ~~From and after the Effective Time, in~~ In the event ~~Parent or the Surviving Corporation~~ ONCE, ISI and DTI or any of their respective successors or assigns (i) consolidates with or merges into any other ~~Person~~ person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any ~~Person~~person, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent or the Surviving Corporation~~ONCE, ISI and DTI, as the case may be, shall succeed to the obligations set forth in this Section 5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person5.2.

Appears in 1 contract

Samples: Share Exchange Agreement (Islet Sciences, Inc)

Appears in 1 contract

Samples: Agreement and Plan of Merger (Graybug Vision, Inc.)

Appears in 1 contract

Samples: Share Purchase Agreement (KAMAN Corp)

Indemnification of Officers and Directors. (a) ~~From~~ For a period of six years from the Effective Time, Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time ~~through~~ (whether asserted or claimed prior to, at or after the Effective Time) now existing in favor of the current or former directors or officers of the Acquired Companies under the certificate of incorporation and bylaws (or other organizational documents) of each of the Acquired Companies, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms and shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any Indemnified Person (as defined below), and Parent shall cause the Acquired Companies to perform their obligations thereunder. Without limiting the foregoing, during the period commencing at the Effective Time and ending on the sixth ~~(6th)~~ anniversary of the ~~date on which~~ Effective Time, Parent shall cause the ~~Effective Time occurs~~Surviving Corporation and its Subsidiaries to, ~~each of Parent~~ and the Surviving ~~Corporation~~Corporation agrees that it will, ~~jointly and severally, shall~~ indemnify and hold harmless each ~~person~~ individual who is ~~now, or has been at any time prior to~~ as of the date ~~hereof~~of this Agreement, or who becomes prior to the Effective Time, a ~~director~~director or officer of any Acquired Company or who is as of the date of this Agreement, ~~officer~~or who thereafter commences prior to the Effective Time, ~~fiduciary~~ serving at the request of any Acquired Company as a director or ~~agent~~ officer of ~~Parent or the Company and their respective Subsidiaries, respectively~~ another Person (the “~~D&O~~ Indemnified ~~Parties~~Persons”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, ~~suit, proceeding~~ suit or ~~investigation~~proceeding, whether civil, criminal, administrative or ~~investigative~~investigative (including with respect to matters existing or occurring at or prior to the Effective Time, including this Agreement and the transactions and actions contemplated hereby), arising out of or pertaining to the fact that the ~~D&O~~ Indemnified ~~Party~~ Person is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ any Acquired Company or is or was serving at the request of ~~the Company~~any Acquired Company as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under applicable ~~Law~~Legal Requirements. ~~Each D&O~~ In the event of any such claim, action, suit or proceeding, (x) each Indemnified ~~Party~~ Person will be entitled to advancement of expenses incurred in the defense of any such claim, action, ~~suit~~suit or proceeding from Parent, ~~proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or~~ the Surviving Corporation ~~from~~ or its Subsidiaries, as applicable, in accordance with the ~~D&O Indemnified Party~~ organizational documents, in each case as in effect on the date of ~~a request therefor~~this Agreement, as applicable, as in effect on the date of this Agreement; provided that any ~~such person~~ Indemnified Person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, if and only to the extent ~~then~~ required by the ~~DGCL~~DGCL or the Surviving Corporation’s or any of its Subsidiaries’ certificate of incorporation or bylaws (or comparable organizational documents) or any such indemnification or other similar agreements, as applicable, to repay such advances if it is ultimately determined by final adjudication that such ~~person~~ Indemnified Person is not entitled to ~~indemnification~~indemnification and (y) Parent, the Surviving Corporation and its Subsidiaries, as applicable, shall reasonably cooperate in the defense of any such matter. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for For a period of six ~~(6)~~ years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent and the Surviving Corporation shall ~~maintain~~ either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance ~~policies, with an effective date as~~ maintained by or for the benefit of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) Acquired Companies or provide substitute policies for the ~~non-cancellable extension of~~ Acquired Companies and their current and former directors and officers who are currently covered by the directors’ and officers’ liability insurance coverage currently maintained by or for the benefit of ~~Parent’s~~ the Acquired Companies, in either case, of not less than the existing coverage and having other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance ~~policies~~ coverage currently maintained by or for a the benefit of the Acquired Companies with respect to claims ~~reporting~~ arising from facts or ~~discovery period of~~ events that occurred at ~~least six (6) years from and after~~ or before the Effective Time (with insurance carriers having at least an “A” rating by A.M. Best with respect to ~~any claim related~~ directors’ and officers’ liability insurance), except that in no event shall Parent or the Surviving Corporation be required to ~~any period~~ pay with respect to such insurance policies an annual premium greater than 300% of ~~time at or~~ the aggregate annual premium most recently paid by the Acquired Companies prior to the ~~Effective Time~~date of this Agreement (the “Maximum Amount”), and if the Surviving Corporation is unable to obtain the insurance required by this ‎Section 6.05(b) it shall obtain as much comparable insurance as possible for the years within such six year period for a premium equal to the Maximum Amount. ~~During~~ In lieu of such insurance, prior to the ~~term~~ Closing Date the Company may purchase a “tail” directors’ and officers’ liability insurance policy for the Acquired Companies and their current and former directors and officers who are currently covered by the directors’ and officers’ liability insurance coverage currently maintained by or for the benefit of the ~~D&O Tail Policy~~Acquired Companies, ~~Parent shall~~ such tail to provide coverage in an amount not ~~take any action following~~ less than the ~~Effective Time~~ existing coverage and to ~~cause~~ have other terms not less favorable to the ~~D&O Tail Policy~~ insured persons than the directors’ and officers’ liability insurance coverage currently maintained by the Acquired Companies with respect to ~~be cancelled~~ claims arising from facts or ~~any provision therein to be amended~~ events that occurred at or ~~waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after~~ before the Effective Time, ; provided that in no event shall the cost of any such tail policy exceed the Maximum Amount. Parent and the Surviving Corporation shall ~~pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to~~ maintain such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue policies in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and ~~shall operate for~~ continue to honor the ~~benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives~~obligations thereunder. (gc) ~~From and after the Effective Time, in~~ In the event ~~Parent or the Surviving Corporation~~ that any Acquired Company or any of ~~their~~ its respective successors or assigns (i) consolidates with or merges into any other Person and ~~shall~~ is not be the continuing or surviving corporation or ~~entity~~ Entity of such consolidation or ~~merger,~~ merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, such Acquired Company, as applicable, shall cause proper provision ~~shall~~ to be made so that the successors and assigns of ~~Parent or the Surviving Corporation, as the case may be, shall succeed to~~ such Acquired Company assume the obligations set forth in this ~~Section 5.7. Parent~~ ‎Section 6.05. (d) The provisions of this ‎Section 6.05 (a) (i) shall ~~cause~~ survive the ~~Surviving Corporation~~ acceptance of Shares for payment pursuant to ~~perform all~~ the Offer and the consummation of the ~~obligations of~~ Merger and (ii) are intended to be for the ~~Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not~~ benefit of, and will be ~~terminated~~enforceable by, ~~amended~~ each indemnified or ~~otherwise modified in any manner that adversely affects any D&O~~ insured party (including the Indemnified ~~Party~~Persons), his or ~~any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs~~ her heirs, successors, assigns and representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification, advancement of expenses, exculpation or contribution that any such Person may have by contract or otherwise. This ‎Section 6.05 may not be amended, altered or repealed after the Offer Acceptance Time in such a manner as to adversely affect the rights of any Indemnified Person or any of their successors, assigns or heirs without the prior written consent of ~~such~~ the affected ~~D&O~~ Indemnified ~~Party or other person~~Person.

Appears in 1 contract

Samples: Merger Agreement (Gilead Sciences Inc)

Indemnification of Officers and Directors. (a) From the First Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the First Effective Time occurs, each of ~~Parent~~ MEDS and the Surviving ~~Corporation, jointly and severally,~~ Company shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the First Effective Time, a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ MEDS or the ~~Company and their respective Subsidiaries~~Company, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ MEDS or of the Company, whether asserted or claimed prior to, at or after the First Effective Time, in each case, to the fullest extent permitted under ~~applicable Law~~the DGCL and the DLLCA. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of ~~Parent~~ MEDS and the Surviving ~~Corporation~~Company, jointly and severally, upon receipt by ~~Parent~~ MEDS or the Surviving ~~Corporation~~ Company from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to ~~Parent~~MEDS, to the extent then required by the ~~DGCL~~DGCL and the DLLCA, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the ~~Organizational Documents~~ certificate of ~~Parent~~ incorporation and bylaws of MEDS with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of ~~Parent~~ MEDS that are presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~ MEDS shall not be amended, modified or repealed for a period of six ~~(6)~~ years from the First Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the First Effective Time, were officers or directors of ~~Parent~~MEDS, unless such modification is required by applicable Law. The ~~Organizational Documents~~ certificate of formation and limited liability company agreement of the Surviving ~~Corporation~~ Company shall contain, and ~~Parent~~ MEDS shall cause the ~~Organizational Documents~~ certificate of formation and limited liability company agreement of the Surviving ~~Corporation~~ Company to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of ~~the date of this Agreement~~MEDS. (c) From and after the First Effective Time, (i) the Surviving ~~Corporation~~ Company shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the First Effective Time and (ii) ~~Parent~~ MEDS shall fulfill and honor in all respects the obligations of ~~Parent~~ MEDS to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under ~~Parent~~MEDS’s Organizational Documents and pursuant to any indemnification agreements between ~~Parent~~ MEDS and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the First Effective Time. (d) From and after the First Effective Time, ~~Parent~~ MEDS shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directorsMEDS. (e) From and after the First Effective Time, ~~Parent~~ MEDS shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section ~~5.7~~ 5.4 in connection with their ~~successful~~ enforcement of the rights provided to such persons in this Section ~~5.7~~5.4. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 5.4 are intended to be in addition to the rights otherwise available to the current and former officers and directors of ~~Parent~~ MEDS and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their ~~representatives~~Representatives. (g) ~~From and after the Effective Time, in~~ In the event ~~Parent~~ MEDS or the Surviving ~~Corporation~~ Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or ~~merger,~~ merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of ~~Parent~~ MEDS or the Surviving ~~Corporation~~Company, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~5.4. ~~Parent~~ MEDS shall cause the Surviving ~~Corporation~~ Company to perform all of the obligations of the Surviving ~~Corporation~~ Company under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person5.4.

Appears in 1 contract

Samples: Merger Agreement (TRxADE HEALTH, INC)

Indemnification of Officers and Directors. (a) All rights to indemnification by the Acquired Corporations existing in favor of those Persons who are directors and officers of any Acquired Corporation as of the date of this Agreement (the “Indemnified Persons”) for their acts and omissions occurring prior to the Effective Time, as provided in the certificate of incorporation and bylaws of the Acquired Corporations (as in effect as of the date of this Agreement) and as provided in the indemnification agreements between the Acquired Corporations and said Indemnified Persons (as in effect as of the date of this Agreement) in the forms made available by the Company to Parent or Parent’s Representatives prior to the date of this Agreement, shall survive the Merger and shall be observed by the Surviving Corporation and its Subsidiaries to the fullest extent available under Delaware law for a period of six years from the Effective Time, and any claim made requesting indemnification pursuant to such indemnification rights within such six-year period shall continue to be subject to this Section 6.6(a) and the indemnification rights provided under this Section 6.6(a) until disposition of such claim. (b) From the Effective Time ~~through~~ until the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, ~~each of Parent and~~ the Surviving ~~Corporation~~Corporation (together with its successors and assigns, jointly and severally, shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, fiduciary or agent of Parent or the Company and their respective Subsidiaries, respectively (the “~~D&O Indemnified~~ Indemnifying Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the Company, whether asserted or claimed prior to, at or after the Effective Time, in each case) shall, to the fullest extent permitted under applicable ~~Law. Each D&O~~ Legal Requirements, indemnify, defend and hold harmless each Indemnified ~~Party will be entitled to advancement~~ Person in his or her capacity as an officer or director of ~~expenses~~ an Acquired Corporation against all losses, claims, damages, liabilities, fees, expenses, judgments or fines incurred ~~in the defense~~ by such Indemnified Person as an officer or director of ~~any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving~~ an Acquired Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of ~~matters occurring at~~ or ~~prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant~~ pertaining to any ~~indemnification provisions under Parent’s Organizational Documents~~ and ~~pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties~~all matters pending, ~~with respect to claims arising out of matters occurring at~~ existing or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time. During the term of the D&O Tail Policy, Parent shall not take any action following the Effective Time to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the ~~Closing~~Effective Time, ~~now existing~~ including any such matter arising under any claim with respect to the transactions contemplated herein. Without limiting the foregoing, the Indemnifying Parties shall also, to the fullest extent permitted under applicable Legal Requirements, advance costs and expenses (including attorneys’ fees) incurred by the Indemnified Persons in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of connection with matters for which such Indemnified Persons are eligible to be indemnified pursuant to this Section ~~5.7 are intended to be in addition~~ 6.6(b) within fifteen days after receipt by Parent of a written request for such advance, subject to the ~~rights otherwise available~~ execution by such Indemnified Persons of appropriate undertakings to ~~the current~~ repay such advanced costs and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representativesexpenses as required under appropriate circumstances. (gc) From ~~and after~~ the Effective Time until the sixth anniversary of the Effective Time, the Surviving Corporation shall maintain in effect, for the benefit of the Indemnified Persons with respect to their acts and omissions occurring prior to the Effective Time, the existing policy of directors’ and officers’ liability insurance maintained by the Company as of the date of this Agreement in the form made available by the Company to Parent or Parent’s Representatives prior to the date of this Agreement on terms with respect to coverage, deductibles and amounts no less favorable than the existing policy or, prior to the Effective Time the Company may purchase a six-year “tail” policy for the existing policy; provided, however, that in no event shall Parent or the Surviving Corporation be required to expend (and prior to the Effective Time the Company shall not expend) an amount in excess of 250% of the annual premium currently payable by the Company with respect to such current policy, it being understood that if the aggregate amount payable for such insurance coverage exceeds such amount, Parent shall be obligated to cause the Surviving Corporation to obtain a policy with the greatest coverage available for a cost equal to such amount. (d) In the event the Company or the Surviving Corporation or its Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or ~~entity~~ Entity of such consolidation or ~~merger,~~ merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, ~~proper provision~~ Parent shall ~~be made so~~ ensure that the successors and assigns of ~~Parent~~ the Company or the Surviving ~~Corporation~~Corporation or its Subsidiaries, as the case may be, or at Parent’s option, Parent, shall ~~succeed to~~ assume the obligations set forth in this Section ~~5.7. Parent~~ 6.6. (e) The provisions of this Section 6.6 shall ~~cause~~ survive the ~~Surviving Corporation~~ acceptance of Shares for payment pursuant to ~~perform all~~ the Offer and the consummation of the ~~obligations~~ Merger and are (i) intended to be for the benefit of, and will be enforceable by, each of the ~~Surviving Corporation under this~~ Indemnified Persons and their successors, assigns and heirs and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. This Section ~~5.7. The obligations set forth in this Section 5.7 shall~~ 6.6 may not be ~~terminated~~amended, ~~amended~~ altered or ~~otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under~~ repealed after the ~~policies referred to in this Section 5.7 and their heirs and representatives,~~ Offer Acceptance Time without the prior written consent of ~~such~~ the affected ~~D&O~~ Indemnified ~~Party or other person~~Person.

Appears in 1 contract

Samples: Merger Agreement (Anadys Pharmaceuticals Inc)

Indemnification of Officers and Directors. (a) From the Effective Time through the sixth ~~(6th)~~ anniversary of the date on which the Effective Time occurs, each of Parent and the Surviving ~~Corporation~~Corporation shall, jointly and severally, ~~shall~~ indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, fiduciary or agent of Parent or the Company and their respective Subsidiaries, respectively (the “D&O Indemnified Parties”), against all claims, ~~losses, liabilities, damages,~~ judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and ~~disbursements~~disbursements and investigation costs, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, or any other actual, threatened or completed proceeding arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the ~~Company~~Company or their respective Subsidiaries, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest extent permitted under applicable Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the D&O Indemnified Party of a request therefor; ~~provided~~ provided, that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) The provisions of ~~the~~ Parent’s Organizational Documents ~~of Parent~~ with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are presently set forth in the ~~Organizational Documents~~ certificate of incorporation and bylaws of Parent ~~as of the date of this Agreement~~ shall not be amended, modified or repealed for a period of six ~~(6)~~ years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent, unless such modification is required by applicable Law. The ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation shall contain, and Parent shall cause the ~~Organizational Documents~~ certificate of incorporation and bylaws of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the ~~Organizational Documents~~ certificate of ~~Parent as~~ incorporation and bylaws of the ~~date of this Agreement~~Company. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and ~~honor~~ honor, and Parent shall cause the Surviving Corporation to fulfill and honor, in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under ~~Parent~~Xxxxxx’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, ~~Parent shall purchase,~~ prior to the Effective Time, Parent shall purchase a ~~six (6)-year~~ six-year prepaid “tail policy” ~~(the “D&O Tail Policy”)~~ through Parent’s recognized broker of record for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six ~~(6)~~ years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective ~~Time. During~~ Time with terms, conditions, and retentions that are no less favorable than the ~~term~~ coverage provided under Parent’s existing policies as of the date of this Agreement and with limits of liability no less than $20,000,000, in each case with respect to any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director or officer of Parent by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time (including in connection with this Agreement or the Contemplated Transactions) (the “D&O Tail Policy”). For clarity, the cost of any such D&O Tail Policy, ~~Parent shall not take any action following~~ to the extent unpaid as of the Effective ~~Time to cause~~ Time, shall reduce the ~~D&O Tail Policy to be cancelled or any provision therein to be amended or waived in any manner that would adversely affect in any material respect the rights~~ amount of ~~their former and current officers and directors~~Net Cash. (e) From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section ~~5.7~~ 5.6 in connection with their successful enforcement of the rights provided to such persons in this Section ~~5.7~~5.6. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section ~~5.7~~ 5.6 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their ~~representatives.~~Representatives. The obligations set forth in this Section 5.6 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party (and their heirs and Representatives) without the prior written consent of such affected D&O Indemnified Party (or their heirs and Representatives), (g) ~~From and after the Effective Time, in~~ In the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section ~~5.7~~5.6. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7. The obligations set forth in this Section 5.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary under the policies referred to in this Section 5.7 and their heirs and representatives, without the prior written consent of such affected D&O Indemnified Party or other person5.6.

Appears in 1 contract

Samples: Merger Agreement (Sesen Bio, Inc.)

Indemnification of Officers and Directors. (a) ~~From~~ For a period of six (6) years from the Effective Time, Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time ~~through~~ (whether asserted or claimed prior to, at or after the Effective Time) now existing in favor of the current or former directors or officers of any Acquired Company and any indemnification or other similar agreements of any Acquired Company that, in the case of any current director or officer of the Company, has been made available to Parent, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms, and Parent shall cause the Acquired Companies to perform their obligations thereunder. Without limiting the foregoing, during the period commencing at the Effective Time and ending on the sixth ~~(6th)~~ anniversary of the ~~date on which~~ Effective Time, Parent shall cause the ~~Effective Time occurs~~Surviving Corporation and its Subsidiaries to, ~~each of Parent~~ and the Surviving ~~Corporation~~Corporation agrees that it will, ~~jointly and severally, shall~~ indemnify and hold harmless each ~~person~~ individual who is ~~now, or has been at any time prior to~~ as of the date ~~hereof~~of this Agreement, or who becomes prior to the Effective Time, a ~~director~~director or officer of any Acquired Company or who is as of the date of this Agreement, ~~officer~~or who thereafter commences prior to the Effective Time, ~~fiduciary~~ serving at the request of any Acquired Company as a director or ~~agent~~ officer of ~~Parent or the Company and their respective Subsidiaries, respectively~~ another Person (the “~~D&O~~ Indemnified ~~Parties~~Persons”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, ~~suit, proceeding~~ suit or ~~investigation~~proceeding, whether civil, criminal, administrative or ~~investigative~~investigative (including with respect to matters existing or occurring at or prior to the Effective Time, including this Agreement and the Transactions and actions contemplated hereby), arising out of or pertaining to the fact that the ~~D&O~~ Indemnified ~~Party~~ Person is or was a ~~director, officer, fiduciary~~ director or ~~agent~~ officer of ~~Parent~~ any Acquired Company or is or was serving at the request of ~~the Company~~any Acquired Company as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time, ~~in each case,~~ to the fullest extent permitted under applicable ~~Law~~Legal Requirements. ~~Each D&O~~ In the event of any such claim, action, suit or proceeding, (x) each Indemnified ~~Party~~ Person will be entitled to advancement of expenses incurred in the defense of any such claim, action, ~~suit,~~ suit or proceeding ~~or investigation~~ from ~~each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or~~ the Surviving Corporation ~~from~~ or its Subsidiaries, as applicable, in accordance with the ~~D&O Indemnified Party~~ organizational documents and any indemnification or other similar agreements of ~~a request therefor~~the Surviving Corporation or its Subsidiaries, as applicable, as in effect on the date of this Agreement; provided that any ~~such person~~ Indemnified Person to whom expenses are advanced provides an ~~undertaking to Parent~~undertaking, if and only to the extent ~~then~~ required by the ~~DGCL~~WBCA or the Surviving Corporation’s or its Subsidiaries’ certificate of incorporation or bylaws (or comparable organizational documents) or any such indemnification or other similar agreements, as applicable, to repay such advances if it is ultimately determined by final adjudication that such ~~person~~ Indemnified Person is not entitled to ~~indemnification~~indemnification and (y) the Surviving Corporation and its Subsidiaries, as applicable, shall reasonably cooperate in the defense of any such matter. (b) The provisions of the Organizational Documents of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are set forth in the Organizational Documents of Parent as of the date of this Agreement shall not be amended, modified or repealed for For a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Parent. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement. (c) From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time. (d) From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy” (the “D&O Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective ~~Time~~ Time, Parent and the Surviving Corporation shall either cause to be maintained in effect the current policies of directors’ and officers’, employment practices and fiduciary liability insurance maintained by or for the benefit of the Acquired Companies or provide substitute policies for the Acquired Companies and their current and former directors and officers who are currently covered by the directors’ and officers’, employment practices and fiduciary liability insurance coverage currently maintained by or for the benefit of the Acquired Companies, in either case, of not less than the existing coverage and having other terms not less favorable in the aggregate to the insured persons than the directors’ and officers’, employment practices and fiduciary liability insurance coverage currently maintained by or for the benefit of the Acquired Companies with respect to ~~any claim related to any period of time~~ claims arising from facts or events that occurred at or before the Effective Time (with insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’, employment practices and fiduciary liability insurance), except that in no event shall Parent or the Surviving Corporation be required to pay with respect to such insurance policies more than 300% of the aggregate annual premium most recently paid by the Acquired Companies prior to the ~~Effective Time~~date of this Agreement (the “Maximum Amount”), and if the Surviving Corporation is unable to obtain the insurance required by this Section 6.4(b) it shall obtain as much comparable insurance as possible for the years within such six (6)-year period for a premium equal to the Maximum Amount. ~~During~~ In lieu of such insurance, prior to the ~~term~~ Closing Date the Company may, at its option, purchase a “tail” directors’ and officers’, employment practices and fiduciary liability insurance policy for the Acquired Companies and their current and former directors and officers who are currently covered by the directors’ and officers’, employment practices and fiduciary liability insurance coverage currently maintained by or for the benefit of the ~~D&O Tail Policy~~Acquired Companies, ~~Parent shall~~ such tail to provide coverage in an amount not ~~take any action following~~ less than the ~~Effective Time~~ existing coverage and to ~~cause~~ have other terms not less favorable to the ~~D&O Tail Policy~~ insured persons than the directors’ and officers’, employment practices and fiduciary liability insurance coverage currently maintained by or for the benefit of the Acquired Companies with respect to ~~be cancelled~~ claims arising from facts or ~~any provision therein to be amended~~ events that occurred at or ~~waived in any manner that would adversely affect in any material respect the rights of their former and current officers and directors. (e) From and after~~ before the Effective Time, ; provided that in no event shall the cost of any such tail policy exceed the Maximum Amount. Parent and the Surviving Corporation shall ~~pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.7 in connection with their successful enforcement of the rights provided to~~ maintain such persons in this Section 5.7. (f) All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or employees, as the case may be, of Parent or the Company as provided in their respective Organizational Documents or in any agreement shall survive the Merger and shall continue policies in full force and effect. The provisions of this Section 5.7 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and ~~shall operate for~~ continue to honor the ~~benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives~~obligations thereunder. (gc) ~~From and after the Effective Time, in~~ In the event ~~Parent or the Surviving Corporation~~ that any Acquired Company or any of ~~their respective~~ its successors or assigns (i) consolidates with or merges into any other Person and ~~shall~~ is not be the continuing or surviving corporation or ~~entity~~ Entity of such consolidation or ~~merger,~~ merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, the Acquired Company, as applicable, shall cause proper provision ~~shall~~ to be made so that the successors and assigns of ~~Parent or the Surviving Corporation, as the case may be, shall succeed to~~ such Acquired Company assume the obligations set forth in this Section ~~5.7. Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.7~~6.4. The ~~obligations set forth in this Section 5.7~~ agreements and covenants contained herein shall not be ~~terminated~~deemed to be exclusive of any other rights to which any Indemnified Person is entitled, ~~amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party~~whether pursuant to applicable law, contract, or ~~any person who is a beneficiary under the policies referred to in~~ otherwise. (d) The provisions of this Section ~~5.7~~ 6.4 (i) shall survive the acceptance of Shares for payment pursuant to the Offer and ~~their heirs~~ the consummation of the Merger and (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Indemnified Persons), his or her heirs, successors, assigns and representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification, advancement of expenses, exculpation or contribution that any such Person may have by contract or otherwise. Unless required by applicable Legal Requirement, this Section 6.4 may not be amended, altered or repealed after the Offer Acceptance Time in such a manner as to adversely affect the rights of any Indemnified Person or any of their successors, assigns or heirs without the prior written ~~consent~~ Consent of ~~such~~ the affected ~~D&O~~ Indemnified ~~Party or other person~~Person.

Appears in 1 contract

Samples: Merger Agreement (Bsquare Corp /Wa)

Common use of Indemnification of Officers and Directors Clause in Contracts