Common use of Indemnity; Directors’ and Officers’ Insurance Clause in Contracts

Indemnity; Directors’ and Officers’ Insurance. (a) Purchaser shall ensure, and shall cause the Company to ensure, that all rights to indemnification with respect to facts, circumstances or events prior to the Closing Date now existing in favor of any individual who, at or prior to the Closing Date, was a director, officer, employee or agent of the Company or who, at the request of the Company, served as a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (collectively, with such individual’s heirs, executors or administrators, the “Indemnified Persons”) as provided in the respective governing documents and indemnification agreements to which the Company is a party, shall survive the Closing and shall continue in full force and effect for a period of not less than six (6) years from the Closing Date and indemnification agreements and the provisions with respect to indemnification and limitations on liability set forth in such charters and by-laws shall not be amended, repealed or otherwise modified to adversely affect such Indemnified Persons; provided, that in the event any claim or claims are asserted or made within such six (6) year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. (b) At the Closing Date, Purchaser shall cause the Company to purchase (at the Company’s sole cost and expense) and maintain in effect for a period of six (6) years thereafter, a tail policy to the current policy of directors’ and officers’ liability insurance maintained by the Company, which tail policy shall be effective for a period from the Closing through and including the date six (6) years after the Closing Date with respect to claims arising from facts or events that occurred on or before the Closing, and which tail policy shall contain substantially the same coverage and amounts as, and contain terms and conditions no less advantageous than, in the aggregate, the coverage currently provided by such current policy; provided, that in no event shall the Company be required to expend, for the entire tail policy, in excess of 300% of the annual premium currently paid by the Company for its current policy of directors’ and officers’ liability insurance; and, provided, further, that, if the premium of such insurance coverage exceeds such amount, the Company after consultation with Seller shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount. (c) Notwithstanding any other provisions hereof, the obligations of Purchaser contained in this Section 5.12 shall be binding upon the successors and assigns of Purchaser. In the event Purchaser, or any of its respective successors or assigns, (i) consolidates with or merges into any other Person or (ii) transfers all or substantially all of its properties or assets to any Person, then, and in each case, proper provision shall be made so that the successors and assigns of Purchaser, as the case may be, honor the indemnification and other obligations set forth in this Section 5.12.

Indemnity; Directors’ and Officers’ Insurance. Fiduciary and Employee Benefit Insurance. (a) Purchaser shall ensure, and shall cause the Company to ensure, Parent agrees that all rights to indemnification with respect to facts, circumstances or events prior to the Closing Date now existing in favor of any individual who, who at or prior to the Closing Date, Effective Time was a director, officer, employee or agent of the Company of any of its Subsidiaries or who, at the request of the CompanyCompany or any of its Subsidiaries, served as a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (collectively, with such individual’s 's heirs, executors or administrators, the “"Indemnified Persons”Parties") as provided in the their respective governing documents charters, by-laws and indemnification agreements to which the Company is a partyagreements, shall survive the Closing Merger and shall continue in full force and effect effect, to the extent permitted by the applicable law of the jurisdiction of organization of the Company or the relevant Subsidiary, for a period of not less than six (6) years from the Closing Date Effective Time and indemnification agreements and the provisions with respect to indemnification and limitations on liability set forth in such charters and by-laws shall not be amended, repealed or otherwise modified to adversely affect such Indemnified Personsmodified; provided, that in the event any claim or claims are asserted or made within such six (6) year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. (b) At the Closing DateEffective Time, Purchaser Parent shall cause the Company Surviving Corporation to purchase (at the Company’s sole cost and expense) and maintain in effect for a period of six (6) years thereafter, a tail policy to the current policy of directors’ and officers’ liability insurance maintained "run-off" coverage as provided (i) by the Company's directors' and officers' liability insurance policies and (ii) by the Company's fiduciary and employee benefit policies, which tail policy in each case, covering those Persons who are covered on the date of this Agreement by such policies, subject to the limitations set forth in Section 5.10(b) of the Company Disclosure Letter; and provided, further that, if Parent or the Surviving Corporation is unable to obtain such "run-off" coverage in accordance with, and subject to the limitations in, this Section 5.10(b), at the Effective Time, Parent shall be effective cause the Surviving Corporation to maintain in effect for a period from the Closing through and including the date of six (6) years after thereafter, the policies referred to in clauses (i) and (ii) above (provided, that the Surviving Corporation, shall not be required to pay an annual premium with respect to each such policy in excess of a maximum of 100% of the last annual premium paid by the Company prior to the Closing Date with respect to claims arising from facts or events that occurred on or before the Closing, and which tail each such policy shall contain substantially the same coverage and amounts as, and contain terms and conditions no less advantageous than, as set forth in the aggregate, the coverage currently provided by such current policy; provided, that in no event shall Section 5.10(a) of the Company be required to expend, for the entire tail policy, in excess of 300% of the annual premium currently paid by the Company for its current policy of directors’ and officers’ liability insurance; Disclosure Letter and, provided, further, that, if the premium of Surviving Corporation is unable to obtain such insurance coverage exceeds required by this Section 5.10(b), it shall obtain as much comparable insurance as possible for an annual premium (or an aggregate premium, as the case may be) with respect to such policies equal to such maximum amount, the Company after consultation with Seller shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount). (c) From and after the Effective Time, the Surviving Corporation shall indemnify all Indemnified Parties to the extent permitted by the applicable law of the jurisdiction of organization of the Company or the relevant Subsidiary with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of the Company or any of its Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees of the Company or any of its Subsidiaries, occurring prior to the Effective Time, including the execution of, and the transactions contemplated by, this Agreement. Without limitation of the foregoing, in the event any such Indemnified Party is or becomes involved, in any capacity, in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring prior to and including the Effective Time, the Surviving Corporation, from and after the Effective Time, shall pay, to the extent required by the relevant charter, bylaws and indemnification agreement and permitted by the applicable law of the jurisdiction of organization of the Company or the relevant Subsidiary, such Indemnified Party's reasonable expenses, including the cost of any investigation and preparation and including the reasonable fees and expenses of counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to the Surviving Corporation, promptly after statements therefor are received and otherwise advance to such Indemnified Party upon request reimbursement of documented expenses reasonably incurred in connection therewith. The Surviving Corporation shall pay all reasonable expenses, including attorneys' fees, that may be incurred by any Indemnified Party in enforcing this Section 5.10 or any action involving an Indemnified Party resulting from the transactions contemplated by this Agreement. The Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld). (d) Notwithstanding any other provisions hereof, the obligations of Purchaser Parent and the Surviving Corporation contained in this Section 5.12 5.10 shall be binding upon the successors and assigns of PurchaserParent and the Surviving Corporation, respectively. In the event PurchaserParent or the Surviving Corporation, or any of its their respective successors or assigns, (i) consolidates with or merges into any other Person or (ii) transfers all or substantially all of its properties or assets to any Person, then, and in each case, proper provision shall be made so that the successors and assigns of PurchaserParent or the Surviving Corporation, as the case may be, honor the indemnification and other obligations set forth in this Section 5.125.10. (e) The obligations of Parent and the Surviving Corporation under this Section 5.10 shall survive the Closing and shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 5.10 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 5.10 applies shall be third-party beneficiaries of this Section 5.10, each of whom may enforce the provisions of this Section).

Indemnity; Directors’ and Officers’ Insurance. (a) Purchaser shall ensure, and shall Buyer agrees to cause the Company to ensure, and the Company immediately following the Closing shall ensure, that all rights to indemnification with respect to facts, circumstances or events prior to the Closing Date now existing in favor of any individual who, at or prior to the Closing DateClosing, (i) was a director, officer, employee director or agent officer of the Company or who, (ii) at the request of the Company, served as a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (collectively, with such individual’s heirs, executors or administrators, the “Indemnified Persons”) as provided in the respective governing documents and indemnification agreements to which set forth on Schedule 6.9(a) of the Company is a partyDisclosure Letter, shall survive the Closing and shall continue in full force and effect for a period of not less than six (6) years from the Closing Date and indemnification agreements and the provisions with respect to indemnification and limitations on liability set forth in such charters and charters, by-laws and indemnification agreements (in each case, now in effect) shall not be amended, repealed or otherwise modified to adversely affect such Indemnified Personsmodified; provided, provided that in the event any claim or claims are asserted or made within such six (6) year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. (b) At Prior to the Closing DateClosing, Purchaser shall cause the Company to may purchase (at the Company’s sole cost and expense) and if purchased, Buyer shall cause the Company to maintain in effect for a period of six (6) years thereafterin accordance with its terms, a tail policy or tail policies (collectively, the “Tail Policy”) to the current policy policies of directors’ and officers’ liability insurance and employment practices insurance maintained by the Company, which tail policy . The cost of any such Tail Policy shall be effective for a period from the Closing through and including the date six (6) years after the Closing Date with respect to claims arising from facts or events that occurred on or before the Closing, and which tail policy shall contain substantially the same coverage and amounts as, and contain terms and conditions no less advantageous than, in the aggregate, the coverage currently provided by such current policy; provided, that in no event shall the Company be required to expend, for the entire tail policy, in excess of 300% of the annual premium currently paid by the Company for its current policy of directors’ and officers’ liability insurance; and, provided, further, that, if the premium of such insurance coverage exceeds such amount, the Company after consultation with Seller shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amountTransaction Expense. (c) Notwithstanding any other provisions hereofanything to the contrary contained in this Agreement, the obligations of Purchaser Buyer and the Company contained in this Section 5.12 6.9 shall be binding upon the successors and assigns of PurchaserBuyer and the Company. In the event PurchaserBuyer or the Company, or any of its their respective successors or assigns, (i) consolidates with or merges into any other Person or (ii) transfers all or substantially all of its properties or assets to any Person, then, and in each case, proper provision shall be made so that the successors and assigns of PurchaserBuyer or the Company, as the case may be, honor the indemnification and other obligations set forth in this Section 5.126.9. (d) The obligations of Buyer and the Company under this Section 6.9 shall survive the Closing and shall not be terminated or modified in such a manner as to affect adversely any Indemnified Person to whom this Section 6.9 applies without the consent of such affected Indemnified Person (it being expressly agreed that the Indemnified Persons to whom this Section 6.9 applies shall be third-party beneficiaries of this Section 6.9, each of whom may enforce the provisions of this Section 6.9).

Indemnity; Directors’ and Officers’ Insurance. (a) Purchaser shall Parent agrees to cause the Surviving Corporation to ensure, and shall cause the Company Surviving Corporation immediately following the Closing agrees to ensure, that all rights to indemnification with respect to facts, circumstances or events prior to the Closing Date and exculpation now existing in favor of any individual who, at or prior to the Closing DateClosing, was a director, officer, employee or agent of the Company or any Company Subsidiary or who, at the request of the CompanyCompany or any Company Subsidiary, served as a director, officer, member, partner, trustee or fiduciary of another corporation, partnership, limited liability company, limited liability partnership, joint venture, trust, pension pension, organization, other entity or other employee benefit plan or enterprise (collectively, with such individual’s heirs, executors or administrators, the “Indemnified Persons”) as provided in the respective governing documents of the Company or any Company Subsidiary and any indemnification agreements to which the Company or any Company Subsidiary is a partyparty or bound, shall survive the Closing and shall continue in full force and effect without modification from such rights as they exist on the Closing Date with respect to the Indemnified Persons for a period of not less than six (6) years from the Closing Date and indemnification agreements and the provisions with respect to indemnification and limitations on liability set forth in such charters and by-laws shall not be amended, repealed or otherwise modified to adversely affect such Indemnified Persons; provided, that in the event any claim or claims are asserted or made within such six (6) year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claimsClosing. (ba) At Prior to the Closing DateClosing, Purchaser shall cause the Company to shall purchase (at the CompanySurviving Corporation’s sole cost and expense, which shall not be a Company Transaction Expense or included in Closing Working Capital or Estimated Working Capital) and maintain in effect for a period of six (6i) years thereafter, a tail policy to the current policy of directors’ and officers’ liability insurance maintained by the Company, which tail policy shall be effective for a period from the Closing through and including the date six (6) years after the Closing Date with respect to claims arising from facts or events that occurred on or before the Closing, and which tail policy shall contain substantially the same coverage and amounts as, and contain terms and conditions no less advantageous than, in the aggregate, the coverage currently provided by such current policy; provided, that in no event shall policy and (ii) “run-off” coverage as provided by the Company be required to expend, for the entire tail policyCompany’s fiduciary and employee benefit policies, in excess each case, covering those Persons who are covered on the date hereof by such policies and with terms, conditions, retentions and limits of 300% of liability that are no less advantageous than the annual premium currently paid by coverage provided under the Company for its current policy of directors’ and officers’ liability insurance; and, provided, further, that, if the premium of such insurance coverage exceeds such amountCompany’s existing policies (collectively, the Company after consultation with Seller shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount“D&O Tail Policy”). (cb) Notwithstanding any other provisions hereof, the obligations of Purchaser Parent, the Surviving Corporation and/or any Company Subsidiary contained in this Section 5.12 5.7 shall be binding upon the successors and assigns of PurchaserParent, the Surviving Corporation and the Company Subsidiaries. In the event PurchaserParent, the Surviving Corporation or any Company Subsidiary, or any of its their respective successors or assigns, (i) consolidates with or merges into any other Person or (ii) transfers all or substantially all of its properties or assets to any Person, then, and in each case, proper provision shall be made so that the successors and assigns of PurchaserParent, the Surviving Corporation or any Company Subsidiary, as the case may be, honor the indemnification and other obligations set forth in this Section 5.125.7. (c) The obligations of Parent, the Surviving Corporation and the Company Subsidiaries under this Section 5.7 shall survive the Closing and shall not be terminated or modified in such a manner as to affect adversely any Indemnified Person to whom this Section 5.7 applies without the written consent of such affected Indemnified Person (it being expressly agreed that the Indemnified Persons to whom this Section 5.7 applies shall be third party beneficiaries of this Section 5.7, each of whom may enforce the provisions of this Section 5.7). (d) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive or impair any rights to directors’, managers’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company, any Company Subsidiary or any of their respective directors, managers or officers, it being understood and agreed that the indemnification provided for in this Section 5.7 is not prior to or in substitution for any such claims under such policies.

Indemnity; Directors’ and Officers’ Insurance. (a) Purchaser Parent shall cause the Surviving Corporation to ensure, and the Surviving Corporation immediately following the Closing shall cause the Company to ensure, that all indemnification rights to indemnification with respect to facts, circumstances or events prior to the Closing Date now existing in favor of any individual who, at or prior to the Closing DateEffective Time, was a director, officer, officer or employee or agent of the Company or who, at the request of the Company, served as a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise any AGF Entity (collectively, with such individual’s heirs, executors or administrators, the “Indemnified Persons”) as provided in the respective governing documents and applicable indemnification agreements to which the Company or any of the Company Subsidiaries is a partyparty as of the date hereof and which are set forth on Section 5.8(a) of the Company Disclosure Schedule, shall survive the Closing Merger and shall continue in full force and effect for a period of not less than six (6) years from the Closing Date and indemnification agreements Effective Time and the provisions with respect to indemnification and limitations on liability set forth in such charters and by-laws governing documents shall not be amended, repealed or otherwise modified in a manner adverse to adversely affect such Indemnified PersonsPersons during such time; provided, that in the event any claim or claims are asserted or made within such six (6) year periodyear-period that could reasonably involve an Indemnified Person, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. (b) At the Closing DateEffective Time, Purchaser Parent shall cause the Company Surviving Corporation to purchase, and the Surviving Corporation immediately following the Closing shall purchase (at the CompanySurviving Corporation’s sole cost and expense) and maintain in effect for a period of six (6) years thereafter, a tail policy policies to the current policy of directors’ and officers’ liability insurance policy maintained by the CompanyCompany or any Company Subsidiary, which tail policy shall be effective for a period from in each case, covering those Persons who are covered immediately prior to the Closing through by such policies and including with terms, conditions, retentions and limits of liability that are no less advantageous than the date six coverage provided under the Company’s or any Company Subsidiary’s existing policy. (6c) years From and after the Closing Date Date, Parent shall and shall cause the Surviving Corporation (each, a “D&O Indemnifying Person”) to indemnify, defend and hold harmless each Indemnified Person against all losses, claims, damages, costs, expenses, liabilities or judgments or amounts that are paid in settlement with respect to claims arising from facts the prior written approval of the D&O Indemnifying Person (which approval shall not be unreasonably delayed, conditioned, or events that occurred withheld) or in connection with any Action or investigation based in whole or in part on or before arising in whole or in part out of the Closingfact that such Indemnified Person is or was a director, officer, employee or agent of any AGF Entity and which tail policy shall contain substantially arising out of actions or omissions, occurring at or prior to the same coverage Closing and amounts aswhether asserted or claimed prior to, and contain terms and conditions no less advantageous than, in the aggregateor at or after, the coverage currently provided by such current policyClosing Date; provided, that in no event each D&O Indemnifying Person shall the Company only be required to expendindemnify an Indemnified Person pursuant to this Section 5.8 to the extent permitted under the Act and required under the applicable governing documents and indemnification agreements to indemnify directors and officers, for as the entire tail policycase may be or those of a direct or indirect subsidiary (and Parent shall, or shall cause the Surviving Corporation to, pay expenses in excess of 300% advance of the annual premium currently paid final disposition of any such Action or investigation to each Indemnified Person to the fullest extent permitted by Law and required under the Company for its current policy of directors’ applicable governing documents and officers’ liability insurance; andindemnification agreements, provided, further, that, provided that the Indemnified Person to whom expenses are advanced 63 provides an undertaking to repay such advances if the premium of it is ultimately determined that such insurance coverage exceeds such amount, the Company after consultation with Seller shall be obligated Indemnified Person is not entitled to obtain a policy with the greatest coverage available for a cost not exceeding such amountindemnification). (cd) Each Indemnified Person under this Section 5.8 will, promptly after the receipt of notice of the commencement of any Action or investigation against such Indemnified Person in respect of which indemnity may be sought from a D&O Indemnifying Person under this Section 5.8, notify the D&O Indemnifying Person in writing of the commencement thereof. The omission of any Indemnified Person to notify a D&O Indemnifying Person of any such Action or investigation shall not relieve such D&O Indemnifying Person from any liability which it may have to such Indemnified Person pursuant to this Section 5.8, unless, and only to the extent that, such omission actually materially prejudices the D&O Indemnifying Person. In case any such Action or investigation shall be brought against any Indemnified Person and it shall notify the D&O Indemnifying Person of the commencement thereof, the D&O Indemnifying Person shall be entitled to participate therein and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Person; provided, however, that any Indemnified Person may, at its own expense, retain separate counsel to participate in such defense. Notwithstanding the foregoing, in any Action or investigation in which both the D&O Indemnifying Person and the Indemnified Person are, or are reasonably likely to become, a party, such Indemnified Person shall have the right to employ separate counsel reasonably satisfactory to the D&O Indemnifying Person and at the D&O Indemnifying Person’s expense and to control his or her own defense of such Action or investigation if any conflict exists between the D&O Indemnifying Person and such Indemnified Person that would make such separate representation advisable. The D&O Indemnifying Person shall not, without the consent of the Indemnified Person, consent to the entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such Action or investigation or which requires action by the Indemnified Person. The rights accorded to Indemnified Persons hereunder shall be in addition to any rights that any Indemnified Person may have at common law, by separate agreement or otherwise. (e) Notwithstanding any other provisions hereof, the obligations of Purchaser Parent and the Surviving Corporation contained in this Section 5.12 5.8 shall be binding upon the successors and assigns of PurchaserParent and the Surviving Corporation. In the event PurchaserParent or the Surviving Corporation, or any of its their respective successors or assigns, (i) consolidates with or merges into any other Person or (ii) transfers all or substantially all of its properties or assets to any Person, then, and in each case, proper provision shall be made so that the successors and assigns of PurchaserParent or the Surviving Corporation, as the case may be, honor the indemnification and other obligations set forth in this Section 5.125.8. (f) The obligations of Parent and the Surviving Corporation under this Section 5.8 shall survive the Closing and shall not be terminated or modified in any manner that could reasonably be expected to adversely affect any Indemnified Person to whom this Section 5.8 applies without the consent of such affected Indemnified Person (it being agreed that the Indemnified Persons to whom this Section 5.8 applies shall be third-party beneficiaries of this Section 5.8, each of whom may enforce the provisions of this Section 5.8).