Indemnification of Officers and Directors. (a) All rights to indemnification, exculpation and advancement and reimbursement of expenses by any Acquired Company existing in favor of those Persons who are now, or have been at any time prior to the Effective Time, directors and officers of any Acquired Company (the “Indemnified Persons”) for their acts and omissions as directors and officers occurring prior to the Effective Time, as provided in the Company’s or the applicable Acquired Company’s certificate of incorporation, bylaws or other organizational documents (as in effect as of the date of this Agreement) and as provided in those indemnification agreements between an Acquired Company and such Indemnified Persons (as in effect as of the date of this Agreement), will survive the Merger and continue in full force and effect (to the extent such rights to indemnification are available under and consistent with applicable Delaware law) for a period of six years following the date on which the Merger becomes effective, and the Surviving Corporation and its Subsidiaries will (and Parent will cause the Surviving Corporation and its Subsidiaries to) honor and fulfill, in all respects, the obligations of the Acquired Companies in respect of such rights of indemnification, exculpation and advancement and reimbursement of expenses. (b) From the date on which the Effective Time occurs until the sixth anniversary of such date, the Surviving Corporation shall maintain in effect, for the benefit of the Indemnified Persons with respect to their acts and omissions as directors and officers 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 to Parent (the “Existing D&O Policy”), except 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 will not be required to pay annual premiums for the Existing D&O Policy (or for any substitute policies) in excess of 300% of the annual premium paid prior to the date of this Agreement for the Existing D&O Policy (the “Maximum Premium”). If any future annual premiums for the Existing D&O Policy (or any substitute policy therefor) exceed the Maximum Premium in the aggregate, then the Surviving Corporation may reduce the amount of coverage of such Existing D&O Policy (or any substitute policy therefor) to the amount of coverage that can be obtained for a premium equal to the Maximum Premium. The Surviving Corporation or, prior to the Effective Time, the Company shall have the right to purchase a pre-paid, non-cancellable “tail” policy on the Existing D&O Policy for a claims reporting or discovery period of six years from the Closing Date and otherwise on terms and conditions that are no less favorable than the terms and conditions of the Existing D&O Policy; provided, however, that the Surviving Corporation shall not be obligated to, and the Company shall not (without the prior written consent of Parent), expend an amount for such “tail” policy in excess of the Maximum Premium. If such “tail” policy is purchased, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain such “tail” policy in full force and effect in lieu of all other obligations of the Surviving Corporation under the first sentence of this Section 5.7(b). (c) The provisions of this Section 5.7 are intended to be for the benefit of, and will be enforceable by each of the Indemnified Persons, who are intended third-party beneficiaries of this Section 5.7 from and after the Effective Time.
Appears in 2 contracts
Samples: Merger Agreement (Momentive Global Inc.), Merger Agreement (Momentive Global Inc.)
Indemnification of Officers and Directors. (a) All rights to indemnification, exculpation and advancement and reimbursement of expenses and exculpation by any Acquired the Company existing in favor of those Persons who are now, or have been at any time prior to the Effective Time, directors and officers of any Acquired Company Corporation as of the date of this Agreement or have been directors and officers of any Acquired Corporation in the past (collectively, the “Indemnified Persons”) for their acts and omissions as directors and officers occurring prior to the Effective Time, as provided in the Company’s certificate of incorporation and bylaws (or applicable governing documents) of the applicable Acquired Company’s certificate of incorporation, bylaws or other organizational documents Corporation (as in effect as of the date of this Agreement) and as provided in those the indemnification agreements between an the Acquired Company Corporation and such 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, will shall survive the Merger and continue shall not be amended, repealed or otherwise modified in full force any manner that would adversely affect the rights thereunder of such Indemnified Persons, and effect (shall be observed by the Surviving Corporation and its Subsidiaries to the fullest extent such rights to indemnification are available under and consistent with applicable Delaware law) law for a period of six years following from the date on which the Merger becomes effectiveEffective 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 Surviving Corporation and its Subsidiaries will (and Parent will cause the Surviving Corporation and its Subsidiaries torights provided under this Section 6.5(a) honor and fulfill, in all respects, the obligations of the Acquired Companies in respect until disposition of such rights of indemnification, exculpation and advancement and reimbursement of expensesclaim.
(b) From the Effective Time until the sixth anniversary of the date on which the Effective Time occurs until the sixth anniversary of such dateoccurs, Parent and the Surviving Corporation shall maintain (together with their successors and assigns, the “Indemnifying Parties”) shall, to the extent described in effectSection 6.5(a), for (i) indemnify and hold harmless each Indemnified Person in his or her capacity as an officer or director of an Acquired Corporation against all losses, claims, damages, liabilities, fees, expenses, judgments or fines incurred by such Indemnified Person as an officer or director of an Acquired Corporation in connection with any pending or threatened Legal Proceeding based on or arising out of, in whole or in part, the benefit fact that such Indemnified Person is or was a director or officer of an Acquired Corporation at or prior to the Indemnified Persons with respect Effective Time and pertaining to their acts any and omissions as directors and officers all matters pending, existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the existing policy of directors’ and officers’ liability insurance maintained by Effective Time, including any such matter arising under any claim with respect to the Company as of the date of this Agreement in the form Made Available to Parent (the “Existing D&O Policy”), except that: (i) the Surviving Corporation may substitute for the Existing D&O Policy a policy or policies of comparable coverage; transactions contemplated herein and (ii) advance reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Surviving Corporation will not Indemnified Persons in connection with matters for which such Indemnified Persons are eligible to be required indemnified pursuant to pay annual premiums this Section 6.5(b) after receipt by Parent of a written request for such advance, subject to the Existing D&O Policy (or for any substitute policies) execution by such Indemnified Persons of appropriate undertakings in excess of 300% favor of the annual premium paid prior Indemnifying Parties to the date of this Agreement for the Existing D&O Policy (the “Maximum Premium”). If any future annual premiums for the Existing D&O Policy (or any substitute policy therefor) exceed the Maximum Premium in the aggregate, then the Surviving Corporation may reduce the amount of coverage of repay such Existing D&O Policy (or any substitute policy therefor) to the amount of coverage that can be obtained for a premium equal to the Maximum Premium. The Surviving Corporation or, prior to the Effective Time, the Company shall have the right to purchase a pre-paid, non-cancellable “tail” policy on the Existing D&O Policy for a claims reporting or discovery period of six years from the Closing Date and otherwise on terms and conditions that are no less favorable than the terms and conditions of the Existing D&O Policy; provided, however, that the Surviving Corporation shall not be obligated to, and the Company shall not (without the prior written consent of Parent), expend an amount for such “tail” policy in excess of the Maximum Premium. If such “tail” policy is purchased, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain such “tail” policy in full force and effect in lieu of all other obligations of the Surviving Corporation under the first sentence of this Section 5.7(b).
(c) The provisions of this Section 5.7 are intended to be for the benefit of, and will be enforceable by each of the Indemnified Persons, who are intended third-party beneficiaries of this Section 5.7 from and after the Effective Time.advanced costs and
Appears in 2 contracts
Samples: Merger Agreement (Enel Green Power North America, Inc.), Merger Agreement (Enernoc Inc)
Indemnification of Officers and Directors. (a) All rights to indemnification, exculpation and advancement and reimbursement of expenses indemnification by any Acquired the Company existing in favor of those Persons who are now, or have been at any time prior to the Delaware Merger Effective Time, directors and officers of any Acquired Company Inphi Entity (the “Company Indemnified Persons”) for their acts and omissions as directors and officers occurring prior to the Delaware Merger Effective Time, as provided in the Company’s or the applicable Acquired CompanyInphi Entity’s certificate of incorporation, bylaws or other organizational documents (as in effect as of the date of this Agreement) and as provided in those indemnification agreements between an Acquired Company Inphi Entity and such Company Indemnified Persons (as in effect as of the date of this Agreement)) Made Available to Marvell, will survive the Delaware Merger and continue in full force and effect (to the extent such rights to indemnification are available under and consistent with applicable Delaware law) for a period of six years following the date on which the Delaware Merger becomes effective, and the Surviving Corporation and its Subsidiaries will (and Parent will cause the Surviving Corporation and its Subsidiaries to) honor and fulfill, in all respects, the obligations of the Acquired Companies in respect of such rights of indemnification, exculpation and advancement and reimbursement of expenses.
(b) All rights to indemnification by Marvell existing in favor of those Persons who are now, or have been at any time prior to the Bermuda Merger Effective Time, directors and officers of any Marvell Entity (the “Marvell Indemnified Persons” and, together with the Company Indemnified Persons, the “Indemnified Persons”) for their acts and omissions as directors and officers occurring prior to the Bermuda Merger Effective Time, as provided in Marvell’s or the applicable Marvell Entity’s memorandum of association, bye-laws or other organizational documents and as provided in any indemnification agreements between a Marvell Entity and such Marvell Indemnified Persons, will survive the Bermuda Merger and continue in full force and effect (to the extent such rights to indemnification are available under and consistent with applicable law) for a period of six years following the date on which the Bermuda Merger becomes effective.
(c) From the date on which the Bermuda Merger Effective Time occurs until the sixth anniversary of such date, HoldCo, the Surviving Bermuda Company and the Surviving Delaware Corporation shall maintain in effect, for the benefit of the Indemnified Persons with respect to their acts and omissions as directors and officers occurring prior to the Delaware Merger Effective Time, the existing policy policies of directors’ and officers’ liability insurance maintained by Marvell and the Company Company, respectively, as of the date of this Agreement (and with respect to those policies maintained by the Company, in the form Made Available to Parent Marvell) (the “Existing D&O PolicyPolicies”), to the extent that such directors’ and officers’ liability insurance coverage is available on commercially reasonable terms, except that: (i) each of HoldCo, the Surviving Bermuda Company and the Surviving Delaware Corporation may substitute for the Existing D&O Policy a policy or Policies other policies of comparable coverage; and (ii) none of HoldCo, the Surviving Bermuda Company or the Surviving Delaware Corporation will not be required to pay annual premiums for the such Existing D&O Policy (or for any substitute policies) in excess of 300% of the annual premium paid prior to the date of this Agreement for the Existing D&O Policy (the “Maximum Premium”). If any future annual premiums for the an Existing D&O Policy (or any substitute policy therefor) exceed the Maximum Premium in the aggregate, then HoldCo, the Surviving Bermuda Company or the Surviving Delaware Corporation may reduce the amount of coverage of such Existing D&O Policy (or any substitute policy therefor) to the amount of coverage that can be obtained for a premium equal to the Maximum Premium. The Surviving Bermuda Company and the Surviving Delaware Corporation or, prior to the Delaware Merger Effective Time, the Company shall have the right to purchase a pre-paid, non-cancellable “tail” policy on the any Existing D&O Policy for a claims reporting or discovery period of six years from the Closing Date and otherwise on terms and conditions that are no less favorable than the terms and conditions of the applicable Existing D&O Policy; provided, however, that none of HoldCo, the Surviving Bermuda Company or the Surviving Delaware Corporation shall not be obligated to, and the Company shall not (without the prior written consent of ParentMarvell), expend an amount for such “tail” policy in excess of the Maximum Premium. If such “tail” policy is purchased, purchased by the Surviving Delaware Corporation or the Surviving Bermuda Company (a “Tail Policy Purchaser”), such Tail Policy Purchaser shall, and Parent HoldCo shall cause the Surviving Corporation such Tail Policy Purchaser to, maintain such “tail” policy in full force and effect in lieu of all other obligations of the Surviving Corporation such Tail Policy Purchaser under the first sentence of this Section 5.7(b5.8(c).
(cd) The provisions of this Section 5.7 5.8 are intended to be for the benefit of, and will be enforceable by by: (i) each of the Company Indemnified Persons, who are intended third-party beneficiaries of this Section 5.7 5.8 from and after the Delaware Merger Effective Time; and (ii) each of the Marvell Indemnified Persons, who are intended third-party beneficiaries of this Section 5.8 from and after the Bermuda Merger Effective Time.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (INPHI Corp), Merger Agreement (Marvell Technology Group LTD)
Indemnification of Officers and Directors. (a) All rights to indemnification, exculpation and advancement and reimbursement of expenses and exculpation by any Acquired the Company existing as of the Agreement Date (or pursuant to any Contract entered into after the execution of this Agreement with Parent’s prior written consent) in favor of those Persons who are now, or have been at any time prior to the Effective Time, directors and officers of any Acquired Company Corporation as of the Agreement Date or have been directors and officers of any Acquired Corporation in the past (the “Indemnified Persons”) for their acts and omissions as directors and officers occurring prior to the Effective Time, as provided in the Company’s certificate of incorporation and bylaws (or applicable governing documents) of the applicable Acquired Company’s certificate of incorporation, bylaws or other organizational documents Corporation (as in effect as of the date of this AgreementAgreement Date) and as provided in those the indemnification agreements between an the Acquired Company Corporation and such said Indemnified Persons (as set forth in effect as Section 7.4 of the date of this Agreement)Company Disclosure Letter and made available by the Company to Parent or Parent’s Representatives prior to the Agreement Date, will shall survive the Merger and continue shall not be amended, repealed or otherwise modified in full force any manner that would adversely affect the rights thereunder of such Indemnified Persons, and effect (shall be observed by the Surviving Corporation and its Subsidiaries to the fullest extent such rights to indemnification are available under and consistent with applicable Delaware law) law for a period of six years following from the date on which the Merger becomes effectiveEffective Time, and any claim made pursuant to such rights within such six-year period shall continue to be subject to this Section 7.4(a) and the Surviving Corporation and its Subsidiaries will (and Parent will cause the Surviving Corporation and its Subsidiaries torights provided under this Section 7.4(a) honor and fulfill, in all respects, the obligations of the Acquired Companies in respect until disposition of such rights of indemnification, exculpation and advancement and reimbursement of expensesclaim.
(b) From and after the Effective Time until the sixth anniversary of the date on which the Effective Time occurs until the sixth anniversary of such dateoccurs, the Surviving Corporation shall maintain (together with its successors and assigns, the “Indemnifying Parties”) shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each Indemnified Person in effecthis or her capacity as an officer or director of an Acquired Corporation against all losses, for claims, damages, liabilities, fees, expenses, judgments or fines incurred by such Indemnified Person as an officer or director of an Acquired Corporation in connection with any pending or threatened Legal Proceeding based on or arising out of, in whole or in part, the benefit fact that such Indemnified Person is or was a director or officer of an Acquired Corporation at or prior to the Indemnified Persons with respect Effective Time and pertaining to their acts any and omissions as directors and officers all matters pending, existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the existing Effective Time, including any such matter arising under any claim with respect to the transactions contemplated herein. 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 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). Parent shall cause the Surviving Corporation to comply with its obligations under this Section 7.4(b).
(c) From the Effective Time until the sixth 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 Acquired Corporations as of the date Agreement Date for the benefit of this Agreement 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), on terms with respect to coverage, deductibles and amounts no less favorable in the form Made Available aggregate than the existing policy (or at or prior to the Effective Time 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-year “tail” policy for the existing policy effective as of the Effective Time) and if such “Existing D&O Policy”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, except that: (i) however, that in no event shall the Surviving Corporation may substitute for the Existing D&O Policy a policy or policies of comparable coverage; and (ii) the Surviving Corporation will not be required to pay annual premiums for to, and without Parent’s consent the Existing D&O Policy Company may not, expend in any one (or for any substitute policies1) year an amount in excess of 300% of the annual premium paid prior currently payable by the Company with respect to such current policy, it being understood that if the date of this Agreement for the Existing D&O Policy (the “Maximum Premium”). If any future annual premiums payable for the Existing D&O Policy (or any substitute policy therefor) exceed the Maximum Premium in the aggregatesuch insurance coverage exceeds such amount, then the Surviving Corporation may reduce the amount of coverage of such Existing D&O Policy (or any substitute policy therefor) to the amount of coverage that can be obtained for a premium equal to the Maximum Premium. The Surviving Corporation or, prior to the Effective Time, the Company Parent shall have the right to purchase a pre-paid, non-cancellable “tail” policy on the Existing D&O Policy for a claims reporting or discovery period of six years from the Closing Date and otherwise on terms and conditions that are no less favorable than the terms and conditions of the Existing D&O Policy; provided, however, that the Surviving Corporation shall not be obligated to, and the Company shall not (without the prior written consent of Parent), expend an amount for such “tail” policy in excess of the Maximum Premium. If such “tail” policy is purchased, the Surviving Corporation shall, and Parent shall to cause the Surviving Corporation to, maintain to obtain a policy with the greatest coverage available for a cost equal to such “tail” policy in full force and effect in lieu of all other obligations of amount.
(d) In the event Parent or the Surviving Corporation under or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the first sentence 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, Parent shall ensure that the successors and assigns of Parent or the Surviving Corporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 5.7(b)7.4.
(ce) The provisions of this Section 5.7 7.4 shall survive the acceptance of Shares for payment pursuant to the Offer and the consummation of the Merger and are (i) intended to be for the benefit of, and will shall be enforceable by by, each of the Indemnified PersonsPersons and their successors, who are intended third-party beneficiaries of this 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 from and 7.4 may not be amended, altered or repealed after the Effective TimeOffer 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 the affected Indemnified Person.
Appears in 1 contract
Indemnification of Officers and Directors. (a) All rights to indemnificationFrom and after the Effective Time until the six (6)-year anniversary of the Closing, exculpation the Surviving Corporation will (and advancement if the Surviving Corporation for any reason cannot, Parent will) (i) indemnify and reimbursement of expenses by any Acquired Company existing in favor of those Persons hold harmless the individuals who are now, or have been at any time prior to the Effective Time, Time were directors and or officers of any Acquired Company (collectively, the “Indemnified PersonsParties”) for their acts against any costs or expenses (including reasonable attorneys’ fees and disbursements), judgments, fines, losses, claims, settlements, damages or liabilities in connection with actions or omissions as directors and officers occurring or alleged to have occurred at or prior to the Effective TimeTime and advance expenses with respect thereto, and (ii) honor and maintain in effect for a period of six (6) years from the Effective Time (A) all rights to indemnification of each Indemnified Party, in each case as provided, as provided applicable, in the Company’s certificates of incorporation and bylaws (or the applicable Acquired Company’s certificate of incorporation, bylaws or other comparable organizational documents (as in effect as documents) of the date of this AgreementAcquired Companies, and (B) and as provided all rights to indemnification in those any indemnification agreements between an such Acquired Company and such any Indemnified Persons (as in effect as Party entered into prior to the date hereof and a copy of which has been provided to Parent. The certificate of incorporation and bylaws of the date Surviving Corporation will contain the provisions with respect to indemnification and advancement of this Agreement)expenses set forth in the Company Charter and the Company Bylaws, and any indemnification agreements between the Company and any Indemnified Party will survive the Merger and will continue in full force and effect (to the extent in accordance with their terms, and such rights to indemnification are available under provisions and consistent with applicable Delaware law) agreements will not be amended, repealed or otherwise modified for a period of six (6) years following after the date on which Closing Date in any manner that would adversely affect the Merger becomes effective, and the Surviving Corporation and its Subsidiaries will (and Parent will cause the Surviving Corporation and its Subsidiaries to) honor and fulfill, in all respects, the obligations rights thereunder of the Acquired Companies in respect of Indemnified Parties, unless such rights of indemnification, exculpation and advancement and reimbursement of expenses.modification is required by applicable Legal Requirements..
(b) From the date on which Parent will cause to be maintained in effect for not less than six (6) years from the Effective Time occurs until the sixth anniversary of such date, the Surviving Corporation shall maintain in effect, for the benefit of the Indemnified Persons with respect to their acts and omissions as directors and officers occurring prior to the Effective Time, the existing policy policies of directors’ and officers’ liability insurance maintained by the Acquired Companies as of the date hereof (or such other insurance policy with substantially similar coverage and with terms and conditions that are not less advantageous in any material respect than the Acquired Company’s existing policies) for the Indemnified Parties and any other employees, agents or other individuals otherwise covered by such insurance policies prior to the Effective Time with respect to matters occurring or alleged to have occurred at or prior to the Effective Time (including the Transactions); provided, however, that, in lieu of the purchase of such insurance by Parent or the Surviving Corporation, the Company may at its option prior to the Effective Time instruct its authorized insurance broker to procure for the Company a fully prepaid, non-cancellable six (6)-year run-off program for directors’ and officers’ liability insurance providing at least the same coverage with respect to matters occurring at or prior to the Effective Time and obtained from the same or similar insurance carriers that currently provide the Company’s director and officer liability insurance; provided, that if the aggregate annual premiums for such run-off program exceeds one hundred fifty percent (150%) of the per annum rate of premium paid by the Company as of the date of this Agreement in the form Made Available to Parent (the “Existing D&O Policy”), except that: (i) the Surviving Corporation may substitute hereof for the Existing D&O Policy a policy or policies of comparable coverage; their existing officers’ and (ii) the Surviving Corporation will not be required to pay annual premiums for the Existing D&O Policy (or for any substitute directors’ liability insurance policies) in excess of 300% of the annual premium paid prior to the date of this Agreement for the Existing D&O Policy (the “Maximum Premium”). If any future annual premiums for the Existing D&O Policy (or any substitute policy therefor) exceed the Maximum Premium in the aggregate, then the Surviving Corporation may reduce Company will procure the amount of coverage of such Existing D&O Policy (or any substitute policy therefor) to the amount of maximum coverage that can will then be obtained for a available at an equivalent annual premium equal to the Maximum Premium. The Surviving Corporation or, prior to the Effective Time, the Company shall have the right to purchase a pre-paid, non-cancellable “tail” policy on the Existing D&O Policy for a claims reporting or discovery period one hundred fifty percent (150%) of six years from the Closing Date and otherwise on terms and conditions that are no less favorable than the terms and conditions of the Existing D&O Policysuch rate; provided, howeverfurther, that the Company’s procurement of such fully prepaid run-off policy in accordance with this sentence will be deemed to satisfy in full the obligations of Parent and Surviving Corporation shall not be obligated to, and the Company shall not (without the prior written consent of Parent), expend an amount for such “tail” policy in excess of the Maximum Premium. If such “tail” policy is purchased, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain such “tail” policy in full force and effect in lieu of all other obligations of the Surviving Corporation under the first sentence of pursuant to this Section 5.7(b6.2(b).
(c) If Parent, the Surviving Corporation or any of their successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving Person of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision will be made so that the successors, assigns and transferees of Parent or the Surviving Corporation or their respective successors or assigns, as the case may be, assume the obligations set forth in this Section 6.2.
(d) The provisions of this Section 5.7 6.2 will survive the acceptance of Shares for payment pursuant to the Offer and the consummation of the Merger and are (i) intended to be for the benefit of, and will be enforceable by by, each of the Indemnified PersonsParties and their successors, who are intended third-party beneficiaries 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. Notwithstanding anything herein to the contrary, (A) the obligations of this Section 5.7 from Parent and after the Surviving Corporation or their respective successors will be subject to any limitation imposed by applicable Legal Requirements (including any limitation on the Company’s ability to indemnify its own directors and officers), and (B) Parent will have no obligation to maintain the existence of the Surviving Corporation following the Effective Time.
Appears in 1 contract
Samples: Merger Agreement (Anadigics Inc)
Indemnification of Officers and Directors. (a) All rights to indemnification, exculpation and advancement and reimbursement of expenses and exculpation by any Acquired the Company existing in favor of those Persons who are now, or have been at any time prior to the Effective Time, directors and officers of any Acquired Company Corporation as of the date of this Agreement or have been directors or officers of any Acquired Corporation in the past (the “Indemnified Persons”) for their acts and omissions as directors and officers occurring prior to the Effective Time, as provided in the Company’s certificate of incorporation and bylaws (or applicable governing documents) of the applicable Acquired Company’s certificate of incorporation, bylaws or other organizational documents Corporation (as in effect as of the date of this Agreement) and as provided in those the indemnification agreements between an the Acquired Company Corporation and such said Indemnified Persons (as set forth on Part 5.6(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, will shall survive the Merger and continue shall not be amended, repealed or otherwise modified in full force any manner that would adversely affect the rights thereunder of such Indemnified Persons, and effect (shall be observed by the Surviving Corporation and its Subsidiaries to the fullest extent such rights to indemnification are available under and consistent with applicable Delaware law) law for a period of six years following from the date on which the Merger becomes effectiveEffective Time, and any claim made pursuant to such rights within such six-year period shall continue to be subject to this Section 5.6(a) and the Surviving Corporation and its Subsidiaries will (and Parent will cause the Surviving Corporation and its Subsidiaries torights provided under this Section 5.6(a) honor and fulfill, in all respects, the obligations of the Acquired Companies in respect until disposition of such rights of indemnification, exculpation and advancement and reimbursement of expensesclaim.
(b) From the Effective Time until the sixth anniversary of the date on which the Effective Time occurs until the sixth anniversary of such dateoccurs, Parent and the Surviving Corporation shall maintain (together with their successors and assigns, the “Indemnifying Parties”) shall, to the fullest extent permitted under applicable Legal Requirements, indemnify and hold harmless each Indemnified Person in effecthis or her capacity as an officer or director of an Acquired Corporation against all losses, for claims, damages, liabilities, fees, expenses, judgments or fines incurred by such Indemnified Person as an officer or director of an Acquired Corporation in connection with any pending or threatened Legal Proceeding based on or arising out of, in whole or in part, the benefit fact that such Indemnified Person is or was a director or officer of an Acquired Corporation at or prior to the Indemnified Persons with respect Effective Time and pertaining to their acts any and omissions as directors and officers all matters pending, existing or occurring at or 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 to Parent (the “Existing D&O Policy”)whether asserted or claimed prior to, except that: (i) the Surviving Corporation may substitute for the Existing D&O Policy a policy at or policies of comparable coverage; and (ii) the Surviving Corporation will not be required to pay annual premiums for the Existing D&O Policy (or for any substitute policies) in excess of 300% of the annual premium paid prior to the date of this Agreement for the Existing D&O Policy (the “Maximum Premium”). If any future annual premiums for the Existing D&O Policy (or any substitute policy therefor) exceed the Maximum Premium in the aggregate, then the Surviving Corporation may reduce the amount of coverage of such Existing D&O Policy (or any substitute policy therefor) to the amount of coverage that can be obtained for a premium equal to the Maximum Premium. The Surviving Corporation or, prior to after the Effective Time, including any such matter arising under any claim with respect to the Company 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 have also, to the right 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 purchase be indemnified pursuant to this Section 5.6(b) within fifteen (15) days after receipt by Parent of a pre-paidwritten request for such advance, 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-cancellable “tail” policy on appealable judgment of a court of competent jurisdiction that such Indemnified Person is not entitled to be indemnified under this Section 5.6(b).
(c) From the Existing D&O Policy for a claims reporting or discovery period of six years from Effective Time until the Closing Date and otherwise on terms and conditions that are no less favorable than the terms and conditions sixth anniversary of the Existing D&O Policy; provided, however, that the Surviving Corporation shall not be obligated to, and the Company shall not (without the prior written consent of Parent), expend an amount for such “tail” policy in excess of the Maximum Premium. If such “tail” policy is purchasedEffective 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 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 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), on terms with respect to coverage, deductibles and amounts no less favorable than the existing policy (or at or prior to the Effective Time, Parent or the Company may (through a nationally recognized insurance broker) purchase a six-year “tail” policy for the existing policy effective as 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 5.6(c); provided, however, that in full force and effect in lieu of all other obligations of no event shall the Surviving Corporation under be required to expend in any one year an amount in excess of 300% of the first sentence of this Section 5.7(b)annual premium currently payable by the Acquired Corporations with respect to such current policy, it being understood that if the annual premiums 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.
(cd) 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, Parent shall ensure that the successors and assigns of Parent or the Surviving Corporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 5.6.
(e) The provisions of this Section 5.7 5.6 shall survive the Merger and are (i) intended to be for the benefit of, and will shall be enforceable by by, each of the Indemnified PersonsPersons and their successors, who are intended third-party beneficiaries of 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 from and 5.6 may not be amended, altered or repealed after the Effective TimeTime 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 the affected Indemnified Person.
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Indemnification of Officers and Directors. (a) All rights to indemnification, exculpation and advancement and reimbursement of expenses by any Acquired Company existing in favor of those Persons who are now, or have been at any time prior to the Effective Time, directors and officers of any Acquired Company (the “Indemnified Persons”) for their acts and omissions as directors and officers occurring prior to the Effective Time, as provided in the Company’s or the applicable Acquired Company’s certificate of incorporation, bylaws or other organizational documents (as in effect as of the date of this Agreement) and as provided in those indemnification agreements between an Acquired Company and such Indemnified Persons (as in effect as of the date of this Agreement), will survive the Merger and continue in full force and effect (to the extent such rights to indemnification are available under and consistent with applicable Delaware law) for For a period of six years following from and after the date on which Closing Date, Parent, the Merger becomes effective, Pihana Stockholders (until the R&W Termination Date) (as defined herein) and the Surviving Corporation and its Subsidiaries will agree to indemnify (and Parent will cause the Surviving Corporation and its Subsidiaries to) honor and fulfill, in all respects, the obligations of the Acquired Companies in respect of such rights of indemnification, exculpation and including advancement and reimbursement of expenses.
(b) From the date on which the Effective Time occurs until the sixth anniversary and hold harmless all past and present officers and directors of such date, the Surviving Corporation shall maintain in effect, for the benefit of the Indemnified Persons with respect to their acts and omissions as directors and officers occurring prior Pihana to the Effective Timesame extent such persons are indemnified by Pihana, the existing policy of directors’ and officers’ liability insurance maintained by the Company as of the date of this Agreement in pursuant to Pihana’s certificate of incorporation or bylaws, employment agreements, indemnification agreements identified on the form Made Available Pihana Disclosure Letter, or under applicable Law for acts or omissions which occurred at or prior to the Effective Time. Pihana represents to Parent that no claim for indemnification has been made by any director or officer of Pihana and, to the knowledge of Pihana, no basis exists for any such claim for indemnification.
(b) For a period of six years from and after the “Existing D&O Policy”)Closing Date, except that: Parent (iuntil the R&W Termination Date) (as defined herein) and the Surviving Corporation may substitute for agree to indemnify (including advancement of expenses) and hold harmless all past and present officers and directors of i-STT to the Existing D&O Policy a policy or policies same extent such persons are indemnified by i-STT, as of comparable coverage; and (ii) the Surviving Corporation will not be required to pay annual premiums for the Existing D&O Policy (or for any substitute policies) in excess of 300% of the annual premium paid prior to the date of this Agreement pursuant to i-STT’s certificate of incorporation or bylaws, employment agreements, indemnification agreements identified on the i-STT Disclosure Letter, or under applicable Law for the Existing D&O Policy (the “Maximum Premium”). If any future annual premiums for the Existing D&O Policy (acts or any substitute policy therefor) exceed the Maximum Premium in the aggregate, then the Surviving Corporation may reduce the amount of coverage of such Existing D&O Policy (omissions which occurred at or any substitute policy therefor) to the amount of coverage that can be obtained for a premium equal to the Maximum Premium. The Surviving Corporation or, prior to the Effective Time. STT Communications and i-STT represents to Parent that no claim for indemnification has been made by any director or officer of i-STT and, to the Company shall have the right to purchase a preknowledge of i-paidSTT and STT Communications, non-cancellable “tail” policy on the Existing D&O Policy no basis exists for a claims reporting or discovery period of six years from the Closing Date and otherwise on terms and conditions that are no less favorable than the terms and conditions of the Existing D&O Policy; provided, however, that the Surviving Corporation shall not be obligated to, and the Company shall not (without the prior written consent of Parent), expend an amount any such claim for such “tail” policy in excess of the Maximum Premium. If such “tail” policy is purchased, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain such “tail” policy in full force and effect in lieu of all other obligations of the Surviving Corporation under the first sentence of this Section 5.7(b)indemnification.
(c) The provisions of this Section 5.7 6.07 are intended to be for the benefit of, and will shall be enforceable by each by, all past and present officers and directors of the Indemnified Persons, who are intended thirdPihana and i-party beneficiaries STT and his or her heirs and representatives. The rights of all past and present officers and directors of Pihana and i-STT under this Section 5.7 from 6.07 are in addition to, and after not in substitution for, any other rights to indemnification or contribution that any such person may have by contract, applicable Law or otherwise. If any past or present officer or director shall be forced to commence an action to enforce his of her rights under this Section 6.07, Parent shall reimburse the Effective Timecosts of such suit provided such officer or director is the prevailing party in such suit.
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Samples: Combination Agreement (Equinix Inc)
