Indemnification of Officers, Directors, Employees and Agents. (a) From and after the Effective Time and for a period of six (6) years thereafter, Parent shall, or shall cause the Surviving Corporation to, honor and fulfill all of the obligations of the Company and its Subsidiaries under each Contract relating to the indemnification, exculpation, holding harmless or paying of expenses (each, a “D&O Indemnification Agreement”) in effect as of the date hereof and listed on Schedule 6.16 with each Person who is now, or has been at any time prior to the date hereof, a director, officer, employee, controlling Person or agent of the Company or any of its Subsidiaries (the “D&O Indemnified Persons”). (b) For a period of six (6) years from and after the Effective Time, Parent shall, or shall cause the Surviving Corporation to, honor and fulfill all of the rights of the D&O Indemnified Persons under the Charter Documents and the equivalent charter documents of each Subsidiary of the Company as such documents are in effect as of immediately prior to the Effective Time and as if such documents were in effect in such manner for such six (6) year period, regardless of any amendment, repeal or other modification thereof at or after the Effective Time. (c) For a period of six (6) years from and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain in effect, if available, directors’ and officers’ liability insurance covering those persons who are currently covered by the Company’s directors’ and officers’ liability insurance policy in an amount and on terms no less advantageous, when taken on a whole, to those applicable to the current directors and officers of the Company; provided, however, Parent may fulfill its obligations under this Section 6.16(b) by purchasing either an endorsement under Parent’s directors’ and officers’ liability insurance policy or a “tail” policy under the Company’s existing directors’ and officers’ insurance policy, in either case which (i) has an effective term of six years from the Effective Time, (ii) covers only those persons who are currently covered by the Company’s directors’ and officers’ insurance policy in effect as of the date of this Agreement and only for actions and omissions occurring on or prior to the Effective Time, and (iii) contains terms and conditions (including, without limitation, coverage amounts) that are no less advantageous, when taken as a whole, to those applicable to the current directors and officers of the Company, provided, further, that in no event shall Parent or the Surviving Corporation be required to expend aggregate premiums for any such coverage in excess of 300% of the annual premium currently paid by the Company under its directors’ and officer’s liability insurance policy in effect as of the date of this Agreement, and if the cost for any such coverage is in excess of such amount, Parent or the Surviving Corporation shall only be required to maintain such coverage as is available for such amount. (d) If Parent or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties or assets to any Person, then, and in each such case, proper provision shall be made so that the successors, assigns or transferees of Parent assume, as a matter of Law or otherwise, the obligations set forth in this Section 6.16. (e) The provisions of this Section 6.16 are intended to be for the benefit of, and will be enforceable by, each D&O Indemnified Person, his or her heirs and his or her representatives.
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Indemnification of Officers, Directors, Employees and Agents. (a) From and after the Effective Time and for a period of six (6) years thereafterTime, Parent shall, or shall cause and the Surviving Corporation to, honor and fulfill all of shall indemnify (which shall include the obligations of the Company and its Subsidiaries under each Contract relating to the indemnification, exculpation, holding harmless or paying mandatory advancement of expenses (eachsubject to Section 7.10(c) below), a “D&O Indemnification Agreement”) in effect as of the date hereof defend and listed on Schedule 6.16 with hold harmless each Person person who is now, or has been at any time or who becomes prior to the date hereofEffective Time, a director, officer, employee, controlling Person employee or agent of the Company or any of its Subsidiaries (the “D&O Indemnified PersonsCompany Parties”) against all losses, claims, damages, costs, expenses (including reasonable attorneys’ and other professionals’ fees and expenses), fines, liabilities or judgments or amounts that are paid in settlement with the prior written approval of Parent or the Surviving Corporation (which approval shall not be unreasonably withheld), arising out of or relating to acts or omissions by them in their capacities as such, which acts or omissions occurred at or prior to the Effective Time, in each case to the fullest extent permitted under the DGCL and the terms of the Company’s certificate of incorporation and bylaws in effect on the date of this Agreement. In determining whether an Indemnified Company Party is entitled to indemnification under this Section 7.10(a), if requested by such Indemnified Company Party, such determination shall be made by special, independent counsel selected by the Surviving Corporation and approved by the Indemnified Company Party (which approval shall not be unreasonably withheld) and who has not otherwise performed services for the Surviving Corporation or its Affiliates within the last three years (other than in connection with such matters).
(b) For a period of six (6) years from Parent and after the Effective Time, Parent shall, or shall cause the Surviving Corporation to, honor and fulfill all shall not amend the certificate of incorporation or bylaws of the rights of Surviving Corporation to modify the D&O Indemnified Persons under the Charter Documents and the equivalent charter documents of each Subsidiary of the Company as such documents are indemnification or exculpation provisions therein in effect as of immediately prior a manner inconsistent with this Section 7.10 or otherwise adverse to the Effective Time and as if such documents were in effect in such manner for such six (6) year period, regardless of any amendment, repeal or other modification thereof at or after the Effective TimeIndemnified Company Parties.
(c) Parent and the Surviving Corporation shall indemnify any Indemnified Company Party against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 7.10(a), relating to the enforcement of such Indemnified Company Party’s rights under this Section 7.10 or under the documents referred to in this Section 7.10; provided, that such advancement shall be made only upon delivery to Parent or the Surviving Corporation of an undertaking, by or on behalf of such Indemnified Company Party, to repay all amounts so advanced if it shall be ultimately determined by a final judicial decision from which there is no further right to appeal that such Indemnified Company Party is not entitled to be indemnified for such costs and expenses.
(d) For a period of six (6) years from and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain shall cause to be maintained in effect, if available, effect the current policies of directors’ and officers’ liability insurance covering those persons who are currently covered and fiduciary liability insurance maintained by the Company’s directors’ Company (provided that the Surviving Corporation may substitute therefore policies with one or more reputable unaffiliated third-party insurers of at least the same coverage and officers’ liability insurance policy in an amount amounts containing terms and on terms conditions which are no less advantageous, when taken on a whole, to those applicable advantageous to the current directors and officers of insured) with respect to claims arising from facts or events which occurred at or before the CompanyEffective Time; provided, however, Parent that the Surviving Corporation shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 250% of the premiums paid as of the date hereof by the Company for such insurance (the “Current Premium”), and if such premiums for such insurance would at any time exceed 250% of the Current Premium, then the Surviving Corporation shall cause to be maintained policies of insurance which, in the Surviving Corporation’s good faith determination, provide the maximum coverage available at an annual premium equal to 250% of the Current Premium. In lieu of such coverage, prior to the Closing, the Company may fulfill its obligations under this Section 6.16(b) by purchasing either an endorsement under Parent’s directors’ and officers’ liability insurance policy or substitute a prepaid “tail” policy under for such coverage, which it obtains at the Company’s existing directors’ and officers’ insurance policy, in either case which Closing; provided that the costs of such shall be disregarded (i) has an effective term including by means of six years from increasing the Effective Time, (ii) covers only those persons who are currently covered amount of the Net Working Capital by the Company’s directors’ and officers’ insurance policy in effect as amount of the date of this Agreement and only for actions and omissions occurring on or costs thereof if paid prior to the Effective Time, and Closing) in determining Net Working Capital.
(iiie) contains terms and conditions (including, without limitation, coverage amounts) that are no less advantageous, when taken as a whole, to those applicable to the current directors and officers of the Company, provided, further, that in no event shall If Parent or the Surviving Corporation be required to expend aggregate premiums for any such coverage in excess of 300% of the annual premium currently paid by the Company under its directors’ and officer’s liability insurance policy in effect as of the date of this Agreement, and if the cost for any such coverage is in excess of such amount, Parent or the Surviving Corporation shall only be required to maintain such coverage as is available for such amount.
(d) If Parent or any of its their successors or assigns (i) consolidates with or merges into any other Person and is shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers or conveys all or substantially all of its properties or and assets to any Person, then, and in each such case, to the extent not assumed by operation of law, proper provision shall be made so that the successors, successors and assigns or transferees of Parent assumeor the Surviving Corporation, as a matter of Law or otherwisethe case may be, shall assume the obligations set forth in this Section 6.167.10.
(ef) 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 Company or any of its officers, directors or employees, it being understood and agreed that the indemnification provided for in this Section 7.10 is not prior to or in substitution for any such claims under such policies.
(g) The provisions of this Section 6.16 7.10 shall survive the Closing and are intended to be for the benefit of, and will shall be enforceable by, each D&O Indemnified Personof the Persons identified in Section 7.10(a), his or her their heirs and his their personal representatives and shall be binding on all successors and assigns of Parent, Buyer, the Company and the Surviving Corporation and may not be terminated or her representativesamended in any manner adverse to such Persons without their prior written consent.
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Indemnification of Officers, Directors, Employees and Agents. (a) From and after the Effective Time and for a period of six (6) years thereafter, Parent shall, or and shall cause the Surviving Corporation to, assume and honor and fulfill all of the obligations of any indemnification agreements between the Company and its Subsidiaries under each Contract relating to the indemnification, exculpation, holding harmless or paying of expenses (each, a “D&O Indemnification Agreement”) in effect as of the date hereof and listed on Schedule 6.16 with each any Person who is now, or has been at any time prior to the date hereofhereof or who becomes prior to the Effective Time, a director, officer, employee, controlling Person or agent of the Company or any of its Subsidiaries (the “D&O Indemnified Persons”), each of which is listed as a Material Contract on the Company Disclosure Schedule. For a period of six years from the Closing Date, Parent and the Surviving Corporation shall not amend, repeal or otherwise modify the certificate of incorporation and bylaws of the Surviving Corporation in any manner that would affect adversely the rights thereunder of individuals who at, and at any time prior to, the Effective Time were D&O Indemnified Persons; provided, that such indemnification shall be subject to any limitation imposed from time to time under Applicable Law.
(b) For a period of six (6) years from Parent and after the Effective Time, Parent shall, or shall cause the Surviving Corporation toshall indemnify any D&O Indemnified Person against all reasonable costs and expenses (including attorneys’ fees and expenses), honor and fulfill all such amounts to be payable in advance upon request, relating to the enforcement of the such D&O Indemnified Person’s rights under this Section 5.3 or under any certificate of incorporation or similar organizational document, bylaw or contract regardless of whether such D&O Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. Any amounts due pursuant to this Section 5.3 shall be payable upon request by the D&O Indemnified Persons under the Charter Documents and the equivalent charter documents of each Subsidiary of the Company as such documents are in effect as of immediately prior to the Effective Time and as if such documents were in effect in such manner for such six (6) year period, regardless of any amendment, repeal or other modification thereof at or after the Effective TimePerson.
(c) For a period of six (6) years from and after At or prior to the Effective Time, Parent shall, and the Company shall cause the Surviving Corporation to, maintain in effect, if available, directors’ and officers’ liability insurance covering those persons who are currently covered by the Company’s directors’ and officers’ liability insurance policy in purchase an amount and on terms no less advantageous, when taken on a whole, to those applicable to the current directors and officers of the Company; provided, however, Parent may fulfill its obligations under this Section 6.16(b) by purchasing either an extended reporting period endorsement under Parent’s directors’ and officers’ liability insurance policy or a “tail” policy under the Company’s existing directors’ and officers’ liability insurance policy, in either case which (i) has an effective term of six years from and fiduciary liability insurance covering the Effective Time, (ii) covers only those persons D&O Indemnified Persons who are currently covered by the Company’s existing directors’ and officers’ liability insurance or fiduciary liability insurance policies which shall provide such D&O Indemnified Persons with coverage for a period of six years after the Closing Date on terms no less favorable to such D&O Indemnified Persons than the insurance coverage presently maintained by the Company. In the event that any Person is or would have been entitled to coverage under an officers’ and directors’ liability or fiduciary liability insurance policy pursuant to this Section 5.3 and such policy has lapsed, not been purchased, terminated or is otherwise in effect as of the date of breach or default or affords lesser coverage than is required by this Agreement and only for actions and omissions occurring on or prior to the Effective Time, and (iii) contains terms and conditions (including, without limitation, coverage amounts) that are no less advantageous, when taken Section 5.3 as a whole, to those applicable to the current directors and officers result of the Company’s, provided, further, that in no event shall Parent Parent’s or the Surviving Corporation be required Corporation’s failure to expend aggregate premiums maintain and fulfill its obligations pursuant to this Section 5.3 or for any such coverage in excess of 300% of the annual premium currently paid by the Company under its directors’ and officer’s liability insurance policy in effect as of the date of this Agreement, and if the cost for any such coverage is in excess of such amountother reason, Parent or and the Surviving Corporation Corporation, jointly and severally, shall only be required pay to maintain such Persons such amounts and provide any other coverage or benefits as is available for such amountPersons would have received pursuant to such policies.
(d) If Parent or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties or assets to any Person, then, and in each such case, proper provision shall be made so that the successors, assigns or transferees of Parent assume, as a matter of Law or otherwise, the obligations set forth in this Section 6.16.
(e) The provisions of this Section 6.16 5.3 are intended to be for the benefit of, and will be enforceable by, each D&O Indemnified Person, his or her heirs and his or her representatives.
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Indemnification of Officers, Directors, Employees and Agents. (a) From and after the Effective Time Closing, Buyer and for a period of six (6) years thereafter, Parent shall, or shall cause the Surviving Corporation to, honor and fulfill all of the obligations of the Company shall jointly and its Subsidiaries under each Contract relating to severally indemnify (which shall include the indemnification, exculpation, holding harmless or paying mandatory advancement of expenses (eachas provided in this Section 5.9), a “D&O Indemnification Agreement”) in effect as of the date hereof defend and listed on Schedule 6.16 with hold harmless each Person who is now, or has been at any time or who becomes prior to the date hereofClosing, a director, officer, employee, controlling Person employee or agent of the Company or any of its Subsidiaries (the “D&O Indemnified PersonsCompany Parties”) against all losses, claims, damages, costs, expenses (including reasonable attorneys’ and other professionals’ fees and expenses), fines, liabilities or judgments or amounts that are paid in settlement, arising out of or relating to acts or omissions by them in their capacities as such, which acts or omissions occurred at or prior to the Closing, in each case to the fullest extent permitted under Applicable Laws and in the case of the Company, the terms of the Company’s articles of incorporation and bylaws in effect on the date of this Agreement. In determining whether an Indemnified Company Party is entitled to indemnification under this Section 5.9, if requested by such Indemnified Company Party, such determination shall be made by special, independent counsel selected by the Company and approved by the Indemnified Company Party (which approval shall not be unreasonably withheld) and who has not otherwise performed services for the Company or its Affiliates within the last three years (other than in connection with such matter).
(b) For a period of six (6) years from and after the Effective Time, Parent shall, or shall cause the Surviving Corporation to, honor and fulfill all of the The rights of the D&O an Indemnified Persons Company Party under the Charter Documents this Section 5.9 and the equivalent charter documents exculpation provisions contained in the Company’s articles of each Subsidiary of the Company as such documents are in effect as of immediately prior to the Effective Time and as if such documents were in effect in such manner for such six (6) year periodincorporation, regardless of any amendment, repeal bylaws or other modification thereof at governing documents shall not be diminished by any amendment on or after the Effective TimeClosing Date to the Company’s articles of incorporation, bylaws or other governing documents.
(c) For a period Without limiting the foregoing, in the event of six any claim for indemnification, Buyer and the Company shall jointly and severally, (6x) years from periodically advance reasonable fees and expenses (including attorneys’ and other professionals’ fees and expenses) with respect to the foregoing and pay the reasonable fees and expenses of one counsel selected by each Indemnified Company Party, which counsel shall be reasonably satisfactory to Buyer, promptly after statements therefor are received, provided that the Effective TimeIndemnified Company Party to whom fees and expenses are advanced or for which fees and expenses of counsel are paid provides an undertaking to repay such advances and payments if it is ultimately determined that such Indemnified Company Party is not entitled to indemnification, Parent and (y) assist each Indemnified Company Party in such defense, and subject to the terms of this Section 5.9, Buyer and the Company shall cooperate in the defense of any matter.
(d) The Indemnified Company Party shall have the right to retain one counsel of such Indemnified Company Party’s own choice to represent such Person, which counsel shall be reasonably satisfactory to Buyer; and such counsel shall, to the extent consistent with its professional responsibilities, reasonably cooperate with the Company and any counsel designated by the Company. Buyer and the Company shall cause be liable only for any settlement of any Claim against an Indemnified Company Party made with Buyer or the Surviving Corporation toCompany’s written consent, maintain which consent shall not be unreasonably withheld, conditioned or delayed. Buyer and the Company shall not, without the prior written consent of an Indemnified Company Party, settle or compromise any claim, or permit a default or consent to the entry of any judgment in effectrespect thereof, if availableunless such settlement, compromise or consent includes, as an unconditional term thereof, the giving by the claimant to such Indemnified Company Party of an unconditional release from all liability and obligations (civil or criminal or monetary or otherwise) in respect of such claim.
(e) Prior to the Closing, the Company may obtain such “tail” policies in respect of existing policies of directors’ and officers’ liability insurance covering those persons who are currently covered and fiduciary liability insurance maintained by the Company and its Subsidiaries and providing such coverage as may be determined appropriate by the Company’s directors’ and officers’ liability insurance policy in an amount and on terms no less advantageous, when taken on a whole, to those applicable to ; provided that the current directors and officers first $150,000 of the Company; providedcosts of such shall be disregarded (including by means of increasing the amount of the Cash or Net Working Capital, howeveras applicable, Parent may fulfill its obligations under this Section 6.16(b) by purchasing either an endorsement under Parent’s directors’ and officers’ liability insurance policy or a “tail” policy under the Company’s existing directors’ and officers’ insurance policy, in either case which (i) has an effective term of six years from the Effective Time, (ii) covers only those persons who are currently covered by the Company’s directors’ and officers’ insurance policy in effect as amount of such $150,000 of the date of this Agreement and only for actions and omissions occurring on costs) in determining Cash or prior to Net Working Capital, as applicable, it being the Effective Time, and (iii) contains terms and conditions (including, without limitation, coverage amounts) intent that are no less advantageous, when taken as a whole, to those applicable to Buyer bears the current directors and officers of the Company, provided, further, that in no event shall Parent or the Surviving Corporation be required to expend aggregate premiums for any such coverage in excess of 300% of the annual premium currently paid by the Company under its directors’ and officer’s liability insurance policy in effect as of the date of this Agreement, and if the cost for any such coverage is in excess first $150,000 of such amount, Parent or the Surviving Corporation shall only be required to maintain such coverage as is available for such amountcosts.
(df) If Parent Buyer or the Company or any of its their successors or assigns (i) consolidates with or merges into any other Person and is shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers or conveys all or substantially all of its properties or and assets to any Person, then, and in each such case, to the extent not assumed by operation of law, proper provision shall be made so that the successors, successors and assigns or transferees of Parent assumethe Company, as a matter of Law or otherwisethe case may be, shall assume the obligations set forth in this Section 6.165.9.
(eg) All rights to indemnification and/or advancement of expenses contained in the agreements with Indemnified Company Parties as in effect on the date hereof and set forth in Company Disclosure Schedule 5.9 with respect to matters occurring on or prior to the Closing (including the transactions contemplated hereby) shall survive the Closing and continue in full force and effect. Buyer and the Company shall indemnify any Indemnified Company Party against all reasonable costs and expenses (including attorneys’ and other professionals’ fees and expenses), such amount to be payable in advance upon request as provided in this Section 5.9, relating to the enforcement of such Indemnified Company Party’s rights under this Section 5.9 or under any charter, bylaw, other governing document or other agreement, provided that such Indemnified Company Party provides an undertaking to repay any advances of costs and expenses if it is ultimately determined that such Indemnified Company Party is not entitled to indemnification hereunder or thereunder.
(h) 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 Company or any of its officers, directors or employees, it being understood and agreed that the indemnification provided for in this Section 5.9 is not prior to or in substitution for any such claims under such policies.
(i) The provisions of this Section 6.16 5.9 shall survive the Closing and are intended to be for the benefit of, and will shall be enforceable by, each D&O Indemnified Personof the Persons identified in Section 5.9(a), his or her their heirs and his their personal representatives and shall be binding on all successors and assigns of Buyer and the Company and may not be terminated or her representativesamended in any manner adverse to such Persons without their prior written consent.
Appears in 1 contract
Indemnification of Officers, Directors, Employees and Agents. (a) From The certificate of incorporation and after by-laws of the Effective Time Surviving Corporation shall contain provisions no less favorable with respect to indemnification than are set forth in the certificate of incorporation and by-laws of the Company, as in effect on the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years thereafter, Parent shall, or shall cause from the Surviving Corporation to, honor and fulfill all Effective Time in any manner that would affect adversely the rights thereunder of the obligations of the Company and its Subsidiaries under each Contract relating to the indemnification, exculpation, holding harmless or paying of expenses (each, a “D&O Indemnification Agreement”) in effect as of the date hereof and listed on Schedule 6.16 with each Person individuals who is now, or has been at any time prior to the date hereofEffective Time were directors, officers, employees or agents of the Company or any of its Subsidiaries; provided, however, that the parties hereto acknowledge and agree that the provisions of the certificate of incorporation and by-laws of the Surviving Corporation may specifically exclude the right of any of individual who at any time prior to the Effective Time was a director, officer, employee, controlling Person employee or agent of the Company or any of its Subsidiaries (the “D&O to seek indemnification for any matters for which any Buyer Indemnified Persons”)Party shall successfully pursue indemnity hereunder.
(b) For a period of six (6) years from From and after the Effective TimeTime and without in any way releasing the Company from any of its obligations thereunder, the Surviving Corporation will perform, and Parent shall, or shall will cause the Surviving Corporation toto perform, honor the Company’s obligations under the Indemnification Agreements to the same extent as if they were the Company and fulfill all had executed such agreements, subject to Section 6.6(a). The Company may enter into substantially similar indemnification agreements with other directors of the rights of the D&O Indemnified Persons under the Charter Documents and the equivalent charter documents of each Subsidiary of the Company as such documents are in effect as of immediately prior to the Effective Time and as if such documents were in effect in such manner for such six (6) year period, regardless of any amendment, repeal or other modification thereof at or after the Effective TimeCompany.
(c) For a period of six (6) years from and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain in effect, if available, directors’ and officers’ liability insurance covering those persons who are currently covered by the Company’s directors’ and officers’ liability insurance policy in an amount and on terms no less advantageous, when taken on a whole, to those applicable to the current directors and officers of the Company; provided, however, Parent may fulfill its obligations under this Section 6.16(b) by purchasing either an endorsement under Parent’s directors’ and officers’ liability insurance policy or a “tail” policy under the Company’s existing directors’ and officers’ insurance policy, in either case which (i) has an effective term of six years from the Effective Time, (ii) covers only those persons who are currently covered by the Company’s directors’ and officers’ insurance policy in effect as of the date of this Agreement and only for actions and omissions occurring on or prior to the Effective Time, and (iii) contains terms and conditions (including, without limitation, coverage amounts) that are no less advantageous, when taken as a whole, to those applicable to the current directors and officers of the Company, provided, further, that in no event shall Parent or the Surviving Corporation be required to expend aggregate premiums for any such coverage in excess of 300% of the annual premium currently paid by the Company under its directors’ and officer’s liability insurance policy in effect as of the date of this Agreement, and if the cost for any such coverage is in excess of such amount, Parent or the Surviving Corporation shall only be required to maintain such coverage as is available for such amount.
(d) If Parent or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties or assets to any Person, then, and in each such case, proper provision shall be made so that the successors, assigns or transferees of Parent assume, as a matter of Law or otherwise, the obligations set forth in this Section 6.16.
(e) The provisions of this Section 6.16 6.6 are intended to be for the benefit of, and will shall be enforceable by, each D&O of the Seller Indemnified PersonParties, his or her their heirs and his or her representativestheir personal representatives and shall be binding on all successors and assigns of Parent, Sub, the Company and the Surviving Corporation.
(d) The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, for a period of six years from the Effective Time, maintain director and officer insurance policies comparable in scope and amount of coverage to the policies of the Company in effect on the date hereof and shall add as additional insureds each of the persons who served as officers and directors of the Company immediately prior to the Effective Time; provided, however, that from and after the first anniversary of the Effective Time such director and officer insurance policies may provide coverage in an amount less than that in effect on the date hereof, but not in an amount less than $10 million.
Appears in 1 contract
Indemnification of Officers, Directors, Employees and Agents. (a) From and after the Effective Time and for a period of six (6) years thereafter, Parent shall, or shall cause the Surviving Corporation to, honor and fulfill all of the obligations of the Company and its Subsidiaries under each Contract relating All rights to the indemnification, exculpationadvancement of expenses, holding harmless or paying elimination of expenses (each, a “D&O Indemnification Agreement”) liability and exculpation from liabilities now existing in effect as favor of the date hereof and listed on Schedule 6.16 with each Person who is now, or has been at any time prior to the date hereofhereof or who becomes prior to the Closing Date, a an officer, director, officer, employee, controlling Person manager or agent member of the Company or any of its Subsidiaries Company Subsidiary (the “D&O Indemnified Persons”)) as provided in the Company LLC Agreement and the Company Articles of Organization and the organizational documents of the Company Subsidiaries as in effect as of the date hereof with respect to matters occurring at or prior to the Effective Time (the “Indemnification Obligations”) shall survive the transactions contemplated by this Agreement and shall continue in full force and effect as obligations of the Surviving Entity. Pioneer Parent and Pioneer Investment guarantee the full performance of the Indemnification Obligations of the Company and the Company Subsidiaries.
(b) Pioneer Parent and Pioneer Investment shall not and shall not cause the Surviving Entity to, amend, repeal or otherwise modify the articles of organization and limited liability company agreement of the Surviving Entity or manage the Surviving Entity or any of the Company Subsidiaries in any manner that would affect adversely the rights thereunder of individuals who at and at any time prior to the Effective Time were D&O Indemnified Persons. Pioneer Parent and Pioneer Investment shall, and shall cause the Surviving Entity to, honor any indemnification agreements between the Company and any of the D&O Indemnified Persons, subject in all cases to the terms and conditions thereof.
(c) Pioneer Parent and Pioneer Investment shall and shall cause the Surviving Entity to, indemnify any D&O Indemnified Person against all reasonable costs and expenses (including attorneys’ fees and expenses), such amounts to be payable in advance upon request, relating to the enforcement of such D&O Indemnified Person’s rights under this Section 6.1 to the extent available pursuant to the Company LLC Agreement and the Company Articles of Organization and the organizational documents of the Company Subsidiaries in effect on the date hereof, but only if such D&O Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder.
(d) For a period of six (6) years from and after the Effective Time, Pioneer Parent and Pioneer Investment shall, or shall cause the Surviving Corporation to, honor and fulfill all of the rights of the D&O Indemnified Persons under the Charter Documents and the equivalent charter documents of each Subsidiary of the Company as such documents are in effect as of immediately prior to the Effective Time and as if such documents were in effect in such manner for such six (6) year period, regardless of any amendment, repeal or other modification thereof at or after the Effective Time.
(c) For a period of six (6) years from and after the Effective Time, Parent shall, and shall cause the Surviving Corporation Entity to, maintain in effect, if available, directors’ and officers’ liability insurance and fiduciary liability insurance covering those persons the D&O Indemnified Persons who are currently covered by the Company’s directors’ and officers’ liability insurance policy in an amount and on terms no less advantageous, when taken on a whole, to those applicable to the current directors and officers of the Company; provided, however, Parent may fulfill its obligations under this Section 6.16(b) by purchasing either an endorsement under Parent’s directors’ and officers’ liability insurance policy or a “tail” policy under the Company’s existing directors’ and officers’ liability insurance policy, in either case which (i) has or fiduciary liability insurance policies on terms no less favorable to such D&O Indemnified Persons than such existing insurance. In the event that any Person is or would have been entitled to coverage under an effective term of six years from the Effective Time, (ii) covers only those persons who are currently covered by the Company’s officers’ and directors’ and officers’ liability or fiduciary liability insurance policy pursuant to this Section 6.1 and such policy has lapsed, not been purchased, terminated or is otherwise in effect as of the date of 60 breach or default or affords lesser coverage than is required by this Agreement and only for actions and omissions occurring on or prior to the Effective Time, and (iii) contains terms and conditions (including, without limitation, coverage amounts) that are no less advantageous, when taken Section 6.1 as a whole, to those applicable to the current directors and officers result of the Company’s, provided, further, that in no event shall Parent Pioneer Parent’s or the Surviving Corporation be required Entity’s failure to expend aggregate premiums maintain and fulfill its obligations pursuant to this Section 6.1 or for any such coverage in excess of 300% of the annual premium currently paid by the Company under its directors’ and officer’s liability insurance policy in effect as of the date of this Agreement, and if the cost for any such coverage is in excess of such amountother reason, Parent or and the Surviving Corporation Entity, jointly and severally, shall only be required pay to maintain such coverage as is available for Persons such amount.
(d) If Parent or any of its successors or assigns (i) consolidates with or merges into amounts and provide any other Person and is not the continuing coverage or surviving corporation or entity of benefits as such consolidation or merger, or (ii) transfers all or substantially all of its properties or assets Persons would have received pursuant to any Person, then, and in each such case, proper provision shall be made so that the successors, assigns or transferees of Parent assume, as a matter of Law or otherwise, the obligations set forth in this Section 6.16policies.
(e) The provisions of this Section 6.16 6.1 are intended to be for the benefit of, and will be enforceable by, each D&O Indemnified Person, his or her heirs and his or her representatives.
Appears in 1 contract
Indemnification of Officers, Directors, Employees and Agents. (a) From and after the Effective Time and for a period of six (6) years thereafterTime, Parent shall, or shall cause the Surviving Corporation to, honor and fulfill all of any successor entities which own and operate the obligations of business and properties owned by the Company and its Subsidiaries under each Contract relating to (collectively for the indemnification, exculpation, holding harmless or paying purposes of expenses the indemnification provided by this Section 5.3 (each, a the “D&O Indemnification AgreementSurviving Corporation”) in effect as of the date hereof shall, jointly and listed on Schedule 6.16 with severally, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date hereofhereof or who becomes prior to the Effective Time, a director, officer, employee, controlling Person director or agent officer of the Company or any of its Subsidiaries (the “D&O Indemnified Persons”) against all losses, claims, damages, costs, expenses (including attorneys’ and other professionals’ fee and expenses), liabilities or judgments or amounts that are paid in settlement with the approval of the indemnifying party (which approval shall not be unreasonably withheld) of or in connection with any threatened or actual claim, action, suit, proceeding or investigation based in whole or in part on or arising in whole or in part out of the fact that such Person is or was a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director, officer employee or agent of another corporation, partnership, limited liability company, joint venture, employee benefit plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, arising out of or pertaining to acts or omissions in their capacities as such, and whether asserted or claimed prior to, at or after the Effective Time (“D&O Indemnified Liabilities”), including all D&O Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to the Transaction Documents or the transactions contemplated hereby and thereby, in each case to the fullest extent a corporation is permitted under the DGCL to indemnify its own directors or officers (and Parent and the Surviving Corporation shall, jointly and severally, pay expenses in advance of the final disposition of any such claim, action, suit, proceeding or investigation to each D&O Indemnified Person to the fullest extent a corporation is permitted under the DGCL to advance expenses to its directors and officers in connection with claims, actions and suits involving such Persons) only upon delivery to the Company or Surviving Corporation, as the case may be, of an undertaking, by or on behalf of such D&O Indemnified Person, to repay all amounts so advanced if it shall ultimately be determined that such indemnified person is not entitled to be indemnified under this Section 5.3(a) or otherwise. In determining whether a D&O Indemnified Person is entitled to indemnification under this Section 5.3, if requested by such D&O Indemnified Person, such determination shall be made by special, independent counsel selected by the Surviving Corporation and approved by the D&O Indemnified Person (which approval shall not be unreasonably withheld) and who has not otherwise performed services for the Surviving Corporation or its Affiliates within the last three (3) years (other than in connection with such matters). Without limiting the foregoing, in the event any such claim, action, suit, proceeding or investigation is brought against any D&O Indemnified Persons (whether arising before or after the Effective Time), (i) the D&O Indemnified Persons may retain the Company’s regularly engaged independent legal counsel or other counsel satisfactory to them and reasonably satisfactory to the Company (or satisfactory to them and reasonably satisfactory to Parent and the Surviving Corporation after the Effective Time), and Parent and the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the D&O Indemnified Persons as promptly as statements therefor are received and (ii) Parent shall cause the Surviving Corporation to use its commercially reasonable best efforts to assist in the vigorous defense of any such matter, provided that the Surviving Corporation shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld), and provided further that neither Parent nor the Surviving Corporation shall be obligated pursuant to this Section 5.3 to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single claim, action, suit, proceeding or investigation, unless there is or may be a conflict of interests between two or more of such Indemnified Parties, in which case there may be separate counsel for each similarly situated group. Any D&O Indemnified Person wishing to claim indemnification under this Section 5.3, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Surviving Corporation (but the failure so to notify shall not relieve a party from any liability that it may have under this Section 5.3 except to the extent such failure materially prejudices such party’s position with respect to such claims) and shall deliver to Parent and the Surviving Corporation the undertaking contemplated by Section 145(e) of the DGCL, but without any requirement for the posting of a bond or any other terms or conditions other than those expressly set forth herein.
(b) For a period of six (6) years from Parent and after the Effective Time, Parent shall, or shall cause the Surviving Corporation toshall not amend, honor repeal or otherwise modify the certificate of incorporation and fulfill all bylaws of the Surviving Corporation or manage the Surviving Corporation or any of its Subsidiaries in any manner that would affect adversely the rights thereunder of the D&O Indemnified Persons under the Charter Documents individuals who at and the equivalent charter documents of each Subsidiary of the Company as such documents are in effect as of immediately at any time prior to the Effective Time and as if such documents were in effect in such manner for such six (6) year perioddirectors, regardless officers, employees or agents of the Company or any amendment, repeal or other modification thereof at or after the Effective Time.
(c) For a period of six (6) years from and after the Effective Time, its Subsidiaries. Parent shall, and shall cause the Surviving Corporation to, maintain honor any indemnification agreements between the Company and any of its directors, officers or employees. To the extent not already in effectexistence, if available, directors’ D&O indemnification agreements consistent with the terms of the certificate of incorporation and officers’ liability insurance covering those persons who are currently covered bylaws will be executed by the Company’s directors’ and officers’ liability insurance policy in an amount and on terms no less advantageous, when taken on a whole, to those applicable to the current Company directors and officers management prior to consummation of the Company; provided, however, Merger.
(c) Parent may fulfill its obligations under this Section 6.16(b) by purchasing either an endorsement under Parent’s directors’ and officers’ liability insurance policy or a “tail” policy under the Company’s existing directors’ and officers’ insurance policy, in either case which (i) has an effective term of six years from the Effective Time, (ii) covers only those persons who are currently covered by the Company’s directors’ and officers’ insurance policy in effect as of the date of this Agreement and only for actions and omissions occurring on or prior to the Effective Time, and (iii) contains terms and conditions (including, without limitation, coverage amounts) that are no less advantageous, when taken as a whole, to those applicable to the current directors and officers of the Company, provided, further, that in no event shall Parent or the Surviving Corporation be required to expend aggregate premiums for any such coverage in excess of 300% of the annual premium currently paid by the Company under its directors’ and officer’s liability insurance policy in effect as of the date of this Agreement, and if the cost for any such coverage is in excess of such amount, Parent or the Surviving Corporation shall only indemnify any D&O Indemnified Person against all reasonable costs and expenses (including attorneys’ fees and expenses), such amounts to be required payable in advance upon request as provided in Section 5.3(a), relating to maintain such coverage as is available for such amount.
(d) If Parent or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity enforcement of such consolidation D&O Indemnified Person’s rights under this Section 5.3 or mergerunder any charter, bylaw or (ii) transfers all contract only upon delivery to the Company or substantially all of its properties or assets to any Person, then, and in each such case, proper provision shall be made so that the successors, assigns or transferees of Parent assumeSurviving Corporation, as a matter the case may be, of Law an undertaking, by or otherwise, the obligations set forth in this Section 6.16.
(e) The provisions on behalf of this Section 6.16 are intended to be for the benefit of, and will be enforceable by, each such D&O Indemnified Person, his to repay all amounts so advanced if it shall ultimately be determined that such indemnified person is not entitled to be indemnified under this Section 5.3(a) or her heirs otherwise. Any amounts due pursuant to this Section 5.3 shall be payable upon request by the D&O Indemnified Person and his or her representativesshall bear interest from the date such were originally due and payable at a rate equal to the prime rate of interest as announced by JPMorgan Chase Bank, N.A. as in effect on the date of such initial request plus three percent (3%).
Appears in 1 contract
Samples: Merger Agreement (Xto Energy Inc)
Indemnification of Officers, Directors, Employees and Agents. Buyer shall, and shall cause its Subsidiaries (a) From and including after the Effective Time Closing, the Company Group) to, ensure that all rights to exculpation, indemnification and advancement of expenses now existing in favor of the past and present directors, managers and officers (in such capacities) of each Company Group Member (collectively, together with their respective heirs, executors or administrators, the “D&O Indemnified Parties”) as provided in the Organizational Documents of the Company Group or any written indemnification agreement provided to Buyer, shall survive the Closing and shall continue in full force and effect for a period of six (6) years thereafter, Parent shall, or shall cause the Surviving Corporation to, honor and fulfill all of the obligations of the Company and its Subsidiaries under each Contract relating to the indemnification, exculpation, holding harmless or paying of expenses (each, a “D&O Indemnification Agreement”) in effect as of the date hereof and listed on Schedule 6.16 with each Person who is now, or has been at any time prior to the date hereof, a director, officer, employee, controlling Person or agent of the Company or any of its Subsidiaries (the “D&O Indemnified Persons”).
(b) For a period of not less than six (6) years from the Closing Date and after the Effective Time, Parent shall, or shall cause the Surviving Corporation to, honor and fulfill all of the rights of the D&O Indemnified Persons under the Charter Documents such indemnification agreements and the equivalent charter documents provisions with respect to indemnification, advancement of each Subsidiary of the Company as such documents are in effect as of immediately prior to the Effective Time expenses and as if such documents were in effect limitations on liability set forth in such manner for such six (6) year period, regardless of any amendment, repeal Organizational Documents with respect to acts or other modification thereof omissions existing or occurring at or after the Effective Time.
(c) For a period of six (6) years from and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain in effect, if available, directors’ and officers’ liability insurance covering those persons who are currently covered by the Company’s directors’ and officers’ liability insurance policy in an amount and on terms no less advantageous, when taken on a whole, to those applicable to the current directors and officers of the Company; provided, however, Parent may fulfill its obligations under this Section 6.16(b) by purchasing either an endorsement under Parent’s directors’ and officers’ liability insurance policy or a “tail” policy under the Company’s existing directors’ and officers’ insurance policy, in either case which (i) has an effective term of six years from the Effective Time, (ii) covers only those persons who are currently covered by the Company’s directors’ and officers’ insurance policy in effect as of the date of this Agreement and only for actions and omissions occurring on or prior to the Effective TimeClosing shall not be amended, repealed or otherwise modified (unless required by Law) in a manner that is adverse to any D&O Indemnified Party; provided, that all rights to indemnification and (iii) contains terms and conditions (including, without limitation, coverage amounts) that are no less advantageous, when taken as a whole, advancement of expenses in respect of any Proceeding arising out of or related to those applicable matters existing or occurring at or prior to the current directors Closing and officers asserted or made within such six-year period (each a “D&O Claim”) shall continue until the final disposition of such Proceeding. Notwithstanding the Companyforegoing, provided, further, that in no event a D&O Indemnified Party shall Parent or not be entitled to indemnification and the Surviving Corporation be required advancement of expenses as contemplated above to expend aggregate premiums for any the extent such coverage in excess D&O Indemnified Party is the subject of 300% of the annual premium currently paid a D&O Claim by the Company under Buyer or its directors’ and officer’s liability insurance policy in effect as of the date of Affiliates against Seller pursuant to this Agreement, and if the cost for any such coverage is in excess of such amount, Parent or the Surviving Corporation shall only be required to maintain such coverage as is available for such amount.
(d) If Parent or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties or assets to any Person, then, and in each such case, proper provision shall be made so that the successors, assigns or transferees of Parent assume, as a matter of Law or otherwise, the obligations set forth in this Section 6.16.
(e) The provisions of this Section 6.16 are intended to be for the benefit of, and will be enforceable by, each D&O Indemnified Person, his or her heirs and his or her representatives.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Summit Midstream Partners, LP)
Indemnification of Officers, Directors, Employees and Agents. (a) From All rights to indemnification and after advancement of expenses existing in favor of those Persons who are or were directors or officers of the Company (the “D&O Indemnified Persons”) for acts and omissions occurring prior to the Effective Time, as provided in the Company’s Constituent Documents (as in effect as of the date of this Agreement) and as provided in the indemnification agreements between the Company and said D&O Indemnified Persons (as in effect as of the Effective Time) (the “D&O Indemnified Liabilities”), shall survive the Merger and shall be fully complied with by the Surviving Corporation, and Parent shall take all action necessary to cause the Surviving Corporation to fully comply with such rights, to the fullest extent permitted by Delaware law.
(b) Parent and the Surviving Corporation shall not amend, repeal or otherwise modify the certificate of incorporation and bylaws of the Surviving Corporation or manage Back to Contents the Surviving Corporation or any of its Subsidiaries in any manner that would affect adversely the rights thereunder of individuals who at and at any time prior to the Effective Time and for a period were directors, officers, employees or agents of six (6) years thereafter, the Company or any of its Subsidiaries. Parent shall, or and shall cause the Surviving Corporation to, honor and fulfill all of the obligations of any indemnification agreements between the Company and its Subsidiaries under each Contract relating to the indemnification, exculpation, holding harmless or paying of expenses (each, a “D&O Indemnification Agreement”) in effect as of the date hereof and listed on Schedule 6.16 with each Person who is now, or has been at any time prior to the date hereof, a director, officer, employee, controlling Person or agent of the Company or any of its Subsidiaries (the “D&O Indemnified Persons”)directors, officers or employees.
(bc) For a period of six (6) years from and after the Effective Time, Parent shall, or shall cause the Surviving Corporation to, honor and fulfill all of the rights of the D&O Indemnified Persons under the Charter Documents and the equivalent charter documents of each Subsidiary of the Company as such documents are in effect as of immediately prior to the Effective Time and as if such documents were in effect in such manner for such six (6) year period, regardless of any amendment, repeal or other modification thereof at or after the Effective Time.
(c) For a period of six (6) years from and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain in effect, if available, directors’ and officers’ liability insurance and fiduciary liability insurance covering those persons the D&O Indemnified Persons who are currently covered by the Company’s directors’ and officers’ liability insurance policy in an amount and on terms no less advantageous, when taken on a whole, to those applicable to the current directors and officers of the Company; provided, however, Parent may fulfill its obligations under this Section 6.16(b) by purchasing either an endorsement under Parent’s directors’ and officers’ liability insurance policy or a “tail” policy under the Company’s existing directors’ and officers’ liability insurance policyor fiduciary liability insurance policies on terms no less advantageous to such D&O Indemnified Persons than such existing insurance; provided, in either case which however, that (i) has an effective term of six years from the Effective Time, (ii) covers only those persons who are currently covered by the Company’s directors’ and officers’ insurance policy in effect as of the date of this Agreement and only for actions and omissions occurring on or prior to the Effective Time, and (iii) contains terms and conditions (including, without limitation, coverage amounts) that are no less advantageous, when taken as a whole, to those applicable to the current directors and officers of the Company, provided, further, that in no event shall neither Parent or nor the Surviving Corporation will be required in order to expend aggregate premiums for any maintain such coverage policies to pay an annual premium in excess of 300% of the greater of (A) the last annual premium currently paid by the Company under its directors’ and officer’s liability insurance policy in effect as of prior to the date of this AgreementAgreement and (B) the annual premium for the year in which the Closing occurs (the amount which is 300% of the greater of the amounts set forth in clauses (A) and (B) being referred to as the “Premium Cap”); (ii) if equivalent coverage cannot be obtained, and if the cost for any such coverage is or can be obtained only by paying an annual premium in excess of such amountthe Premium Cap, then Parent shall, or shall cause the Surviving Corporation to, maintain policies that, in Parent’s good faith judgment, provide the maximum coverage available at an annual premium equal to the Premium Cap; and (iii) on or prior to the Closing Date, Parent shall only be required cause the Surviving Corporation to maintain such coverage as is available for such amount.
(d) If purchase a six year extended reporting period endorsement under its existing directors and officers liability coverage. The Company represents to Parent or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties or assets to any Person, then, and in each such case, proper provision shall be made so that the successors, assigns or transferees of Parent assume, as a matter of Law or otherwise, the obligations set forth in this Section 6.16Premium Cap is $123,750.
(e) The provisions of this Section 6.16 are intended to be for the benefit of, and will be enforceable by, each D&O Indemnified Person, his or her heirs and his or her representatives.
Appears in 1 contract
Samples: Merger Agreement (Applera Corp)
Indemnification of Officers, Directors, Employees and Agents. (a) From and after the Effective Time and for a period of six (6) years thereafterTime, Parent shall, or shall cause and the Surviving Corporation toshall indemnify, honor defend and fulfill all of the obligations of the Company and its Subsidiaries under each Contract relating to the indemnification, exculpation, holding hold harmless or paying of expenses (each, a “D&O Indemnification Agreement”) in effect as of the date hereof and listed on Schedule 6.16 with each Person who is now, or has been at any time or who becomes prior to the date hereofEffective Time, a director, officer, employee, controlling Person employee or agent of the Company or any of its Subsidiaries (the “D&O Indemnified PersonsCompany Parties”) against all claims, actions, damages, costs, expenses (including reasonable attorneys’ fees and other professionals’ fees and expenses).
(b) For a period , fines, liabilities or judgments or amounts that are paid in settlement with the prior written approval of six (6) years from and after the Effective Time, Parent shall, or shall cause the Surviving Corporation toCorporation, honor and fulfill all arising out of the rights of the D&O Indemnified Persons under the Charter Documents and the equivalent charter documents of each Subsidiary of the Company or relating to acts or omissions by them in their capacities as such documents are in effect as of immediately prior to the Effective Time and as if such documents were in effect in such manner for such six (6) year periodsuch, regardless of any amendment, repeal which acts or other modification thereof omissions occurred at or after the Effective Time.
(c) For a period of six (6) years from and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain in effect, if available, directors’ and officers’ liability insurance covering those persons who are currently covered by the Company’s directors’ and officers’ liability insurance policy in an amount and on terms no less advantageous, when taken on a whole, to those applicable to the current directors and officers of the Company; provided, however, Parent may fulfill its obligations under this Section 6.16(b) by purchasing either an endorsement under Parent’s directors’ and officers’ liability insurance policy or a “tail” policy under the Company’s existing directors’ and officers’ insurance policy, in either case which (i) has an effective term of six years from the Effective Time, (ii) covers only those persons who are currently covered by the Company’s directors’ and officers’ insurance policy in effect as of the date of this Agreement and only for actions and omissions occurring on or prior to the Effective Time, in each case as and to the fullest extent permitted under (1) the DGCL and (iii2) contains the terms and conditions (including, without limitation, coverage amounts) that are no less advantageous, when taken as a whole, to those applicable to the current directors and officers of the Company, provided, further, that in no event shall Parent or the Surviving Corporation be required to expend aggregate premiums for any such coverage in excess ’s certificate of 300% of the annual premium currently paid by the Company under its directors’ incorporation and officer’s liability insurance policy bylaws in effect as of on the date of this AgreementAgreement (in all cases notwithstanding whether any such provisions are mandatory or permissive). In determining whether an Indemnified Company Party is entitled to indemnification under this Section 9.12(a), if requested by such Indemnified Company Party, such determination shall be made by special, independent counsel selected by the Surviving Corporation and approved by the Indemnified Company Party (which approval shall not be unreasonably withheld) and who has not otherwise performed services for the Surviving Corporation or its Affiliates within the last three years (other than in connection with such matters).
(b) Prior to Closing, the Company shall obtain, and if pre-pay all premiums under, a directors’ and officers’ liability tail insurance policy effective for a period of six years following the cost Closing Date and Parent shall cause the Surviving Corporation (or any successor of the Surviving Corporation) to maintain, and not terminate or modify, such insurance policy for any such coverage is in excess the entire term of such amount, policy.
(c) Parent or and the Surviving Corporation shall only be required not amend the certificate of incorporation or bylaws of the Surviving Corporation to maintain such coverage as is available for such amountmodify the indemnification or exculpation provisions therein in a manner inconsistent with this Section 9.12 or otherwise adverse to the Indemnified Company Parties.
(d) If Parent or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties or assets to any Person, then, and in each such case, proper provision This Section 9.12 shall be made so that the successors, assigns or transferees of Parent assume, as a matter of Law or otherwise, the obligations set forth in this Section 6.16.
(e) The provisions of this Section 6.16 are intended to be for the benefit of, and will shall be enforceable by, each D&O Indemnified Personthe Company’s current or former directors and officers, his or her heirs and his or her representativestheir respective heirs, executor, administrators and estates.
Appears in 1 contract
