Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations. (b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller. (c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX). (d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.
Appears in 3 contracts
Samples: Stock Repurchase Agreement, Stock Repurchase Agreement (First Consulting Group Inc), Stock Repurchase Agreement (Lipson David S)
Insurance and Indemnification. (a) The Company hereby acknowledges its Parent agrees that all rights to indemnification obligations and advancement of expenses for acts or omissions occurring prior to the Seller under Effective Time (including for acts or omissions of directors occurring prior to the Company’s Certificate Effective Time in connection with the adoption of Incorporation this Agreement and the approval of the Transactions) now existing in favor of the current or Bylaws and that certain Indemnity Agreement, dated as former directors or officers of January 1, 2000, by and between the Company and the SellerCompany Subsidiaries, whereby and their respective heirs and representatives (each an "Indemnified Party"), provided in the Company has agreed to indemnify the Seller in his capacity as a director Organizational Documents or Subsidiary Organizational Documents and any indemnification agreements or arrangements of the Company. The Company hereby confirms its obligations and the Company Subsidiaries or as to the Seller under such instruments fullest extent permitted by law shall survive the Merger and its intention shall continue in full force and effect in accordance with their terms for a period of six years following the Effective Time. Parent shall cause to honor such obligations.
(b) For ten years from be included and after the Closing Date, the Company shall maintain to be maintained in effect in the current Surviving Corporation's (or any successor's) certificate of incorporation and by-laws, during such six-year period following the Effective Time, provisions regarding limitation elimination of liability of directors, indemnification of officers and directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as Indemnified Parties than the substitute insurer or carrier has a Best’s rating that is no lower than AX)corresponding provisions contained in the Company Organizational Documents.
(db) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement Parent or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation Surviving Corporation shall maintain the Company’s repurchase 's existing officers' and directors' liability insurance ("D&O Insurance") for a period of not less than three years after the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”)Effective Time; provided, however, that Parent may substitute therefor policies of substantially equivalent coverage and amounts containing terms no less favorable to such former directors or officers; provided further, that if the parties existing D&O Insurance expires or is terminated or cancelled during such period, then Parent or the Surviving Corporation shall use reasonable best efforts to obtain substantially similar D&O Insurance or, if not obtainable, Parent shall obtain as much D&O Insurance as can be obtained for an annual premium not in any action shall include both excess of 200% of the Company and average of the Seller, and the Seller shall have reasonably concluded that counsel selected premiums paid by the Company has a conflict of interest because of in 1998, 1999 and 2000 for D&O Insurance (the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company"Average Premium"); and provided further, however, that the Company in no event shall forfeit the right Parent be required to control the defense or settlement pay annual premiums for insurance under this Section 7.6(b) in excess of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature 200% of the Claim so requiresAverage Premium; and provided, further, that if Parent or the Surviving Corporation is unable to obtain the amount of insurance required by this Section 7.6(b) notify for such annual premium, Parent or the Seller Surviving Corporation shall obtain as much insurance as can be obtained for an annual premium not in excess of its intent to do so, and the Seller shall reasonably cooperate, at the expense 200% of the Company, in Average Premium. The premium for D&O Insurance for the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense 12-month period ending May 2002 is set forth on Section 7.6(b) of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxyDisclosure Schedule.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Polyvision Corp), Merger Agreement (Polyvision Corp), Merger Agreement (Polyvision Corp)
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Surviving Partnership will at all times after the Effective Time indemnify and hold harmless each person who is at the date of this Agreement, or has been at any time prior to the Seller under the Company’s Certificate date of Incorporation or Bylaws and that certain Indemnity this Agreement, dated as a general partner of January 1, 2000, by and between the Company and (or any general partner, officer or director thereof) or a managing member, general partner, director, officer or employee of any of their respective subsidiaries (“Indemnified Parties”), in each case to the Sellerfullest extent permitted by applicable law, whereby with respect to any claim, liability, loss, damage, cost, fees (including reasonable attorneys’ fees) or expense (whenever asserted or claimed) based in whole or in part, or arising in whole or in part out of, any act or omission by that person at or prior to the Company has agreed to indemnify the Seller Effective Time in his capacity connection with that person’s duties as a director general partner, managing member, director, officer or employee, to the same extent and on the same terms (including with respect to advancement of expenses) provided in the relevant limited partnership agreement, operating agreement or articles of incorporation, or in any indemnification agreements, in effect on the date of this Agreement. The Surviving Partnership will pay all reasonable expenses, including attorney’s fees that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations of the Company. The Company hereby confirms its obligations to the Seller Surviving Partnership under such instruments and its intention to honor such obligationsthis Section 9.3.
(b) For ten Lima and Parent will cause the Surviving Partnership to keep in effect (at no less than their current levels of coverage) for at least six years from and after the Closing Date, Effective Time the Company shall maintain in effect the current provisions regarding limitation policies or tail liability coverage of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(ci) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officersgeneral partners’ liability insurance maintained by the General Partners and/or Company and (ii) either directors and officers’ liability insurance, general partner’s liability insurance or managing member liability insurance, as the case may be, maintained by the General Partners, the Company, their respective subsidiaries at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director date of the Company (this Agreement; provided that the Company (A) Lima and Parent may substitute therefor policies of at least the same having comparable coverage and amounts and containing similar terms and conditions which are, in the aggregate, are no less advantageous to the insuredpersons who are currently covered by those policies and with carriers comparable in terms of credit worthiness to those which have written those policies and (B) neither Lima, so long as Parent nor the substitute insurer or carrier has a Best’s rating Surviving Partnership will be required to pay an annual premium for that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend insurance in excess of three times the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller annual premium relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to the year during which this Agreement or is executed, but if they are not able to maintain the Irrevocable Proxy or the transactions contemplated hereby and therebyrequired insurance for an annual premium for that amount, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service they will purchase as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, much coverage as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, it can obtain for that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxyamount.
Appears in 3 contracts
Samples: Merger Agreement (Newhall Land & Farming Co /Ca/), Merger Agreement (LNR Property Corp), Merger Agreement (Lennar Corp /New/)
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Prior to the Seller under Effective Time, the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between Purchaser shall provide to the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as evidence of a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies customary “tail” policy of directors’ and officers’ liability insurance from a reputable and financially sound insurance carrier containing terms and conditions no less favourable in the aggregate to the protection provided by the policies maintained by the Company at not less than current levels with and its Subsidiaries which are in effect immediately prior to the Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the SellerEffective Time and the Purchaser will, and will cause its Subsidiaries to, maintain such tail policies in effect without any reduction in scope or coverage for no less than six years from the Effective Time. From and after the Effective Time, the Purchaser agrees not to take any action to terminate such directors’ and officers’ liability insurance or adversely affect the rights of the Company’s resignation as a director present and former directors and officers thereunder.
(b) The Company will, and will cause its Subsidiaries to, honour all rights to indemnification or exculpation now existing in favour of present and former employees, officers and directors of the Company (provided and its Subsidiaries under Law and under the articles or other constating documents of the Company and/or its Subsidiaries or to the extent that they are disclosed in Section 5.6(b) of the Company Disclosure Letter, under any agreement or contract of any indemnified person with the Company or with any of its Subsidiaries, and acknowledges that such rights shall survive the completion of the Plan of Arrangement, and, to the extent within the control of the Company, the Company shall ensure that the same shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such indemnified person and shall continue in full force and effect in accordance with their terms for a period of not less than six years from the Effective Date.
(c) From and following the Effective Time, the Purchaser will cause the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AXcomply with its obligations under Section 5.6(b).
(d) The If the Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy Purchaser or any of their successors or assigns shall (i) amalgamate, consolidate with or merge or wind-up into any other person and shall not be the continuing or surviving corporation or entity; or (ii) transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns and transferees of the Company or the transactions contemplated hereby and therebyPurchaser, including without limitation as the Company’s repurchase case may be, shall assume all of the Shares and obligations of the Options. This indemnification obligation is separate and apart from Company or the obligations referred to Purchaser, as applicable, set forth in the above paragraphs this Section 5.6.
(e) The provisions of this Section 15 5.6 are intended for the benefit of, and shall apply to any be enforceable by, each insured or indemnified Person (as identified in the relevant policy), his or her heirs and all his or her legal representatives and, for such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the twopurpose, the Company hereby confirms that it is solely obligated acting as trustee on their behalf, and agrees to satisfy and discharge enforce the Claimprovisions of this Section 5.6 on their behalf. Furthermore, (ii) this Section 5.6 shall survive the Company makes reasonably adequate provision to satisfy the Seller termination of this Agreement as a result of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because occurrence of the availability Effective Date for a period of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxysix years.
Appears in 2 contracts
Samples: Arrangement Agreement (Turquoise Hill Resources Ltd.), Arrangement Agreement (Rio Tinto PLC)
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations For a period of six years after the Effective Time, the Parent shall, or shall cause the Surviving Corporation (or any successor to the Seller Surviving Corporation) to indemnify, defend and hold harmless the present and former directors and officers of the Company and of any Company Subsidiaries, and Persons who become any of the foregoing prior to the Effective Time (each an “Indemnified Party”) against all losses, claims, damages, liabilities, costs, fees and expenses (including reasonable fees and disbursements of counsel) and judgments, fines, losses, claims, liabilities and amounts paid in settlement incurred in connection with or arising out of any claim, action, suit, proceeding, or investigation, whether criminal, civil, administrative or investigative, arising out of any acts or omissions occurring at or prior to the Effective Time (including, without limitation, the Transactions); provided, however, that neither the Parent nor the Surviving Corporation shall be required to indemnify any Indemnified Party pursuant hereto if it shall be determined by a court of competent jurisdiction that the Indemnified Party acted in bad faith or, with respect to any criminal action or proceeding, that the Indemnified Party did not have reasonable cause to believe that its conduct was lawful, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law. The Parent also shall advance expenses incurred promptly upon (but in any event with ten days following) receipt of statements therefor from any Indemnified Party; provided that the Person to whom such advances are made provides an undertaking to repay such advances if it is ultimately determined by a court of competent jurisdiction that such Person is not entitled to indemnification. The Parent and the Company agree that in the event any claim, action, suit, proceeding, or investigation is asserted, commenced, or made within the six-year period contemplated by this Section 7.7, all rights to indemnification in respect of any such claim, action, suit, proceeding, or investigation shall continue until disposition of any and all such claims.
(b) The Parent agrees that all rights to indemnification and advancement of expenses existing in favor of, and all limitations on the personal liability of, the present or former directors or officers of the Company or any Company Subsidiary as provided in the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity AgreementBylaws, dated the Certificate or Articles of Incorporation, as the case may be, bylaws or similar documents of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director any of the Company’s Subsidiaries, or any agreements as in effect as of the date hereof with respect to matters occurring prior to the Effective Time shall survive the Merger and shall continue in full force and effect. The Company hereby confirms Parent agrees to cause the Surviving Corporation to comply fully with its obligations to the Seller under such instruments hereunder and its intention to honor such obligationsthereunder.
(bi) For ten The Parent or the Surviving Corporation shall maintain the Company’s existing officers’ and directors’ liability insurance (“D&O Insurance”) for a period of not less than six years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing DateEffective Time; provided, however, that the Company Parent may amend substitute therefor policies of substantially equivalent coverage and amounts containing terms no less favorable to such provisions so long former directors or officers; provided, further, that if the existing D&O Insurance expires or is terminated or cancelled during such period, then the Parent or the Surviving Corporation shall obtain substantially similar D&O Insurance on terms at least as any favorable to such amendment does not materially and adversely affect the Sellerformer directors or officers.
(cii) For ten years from and after Notwithstanding the Closing Dateprovisions of Section 7.7(c)(i) above, the Company shall maintain may at its option, in effect lieu of complying with the current policies provisions of Section 7.7(c)(i), purchase an extended reporting period endorsement (the “Policy Extension”) under the Company’s existing directors’ and officers’ liability insurance coverage for the Company’s directors and officers which shall provide such directors and officers with coverage for six years following the Effective Time, which policy shall provide coverage amounts, terms, and conditions which are no less favorable to the insured Persons than the directors’ and officers’ liability insurance coverage currently maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior to or at the Seller’s resignation as a director of Effective Time. The Parent shall take any and all actions necessary or advisable to maintain such Policy Extension, and shall so maintain such Policy Extension, on the Company (provided that terms so purchased and shall not modify or amend the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, thereof in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)any manner.
(d) In the event the Parent, the Surviving Company, or any of their successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent assume the obligations set forth in this Section 7.7.
(e) The Company Parent shall indemnifyunconditionally guarantee the timely payment of all funds owing by, hold harmless and defend the Seller against any timely performance of all other obligations of, the Surviving Corporation under this Section 7.7. From and after the Effective Time, the Parent shall, and shall cause the Surviving Corporation to, pay all claimsexpenses, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) that may be incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby Indemnified Parties in enforcing their indemnity rights and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to other rights provided in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy7.7.
Appears in 2 contracts
Samples: Merger Agreement (Mobius Management Systems Inc), Merger Agreement (Mobius Management Systems Inc)
Insurance and Indemnification. (ai) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity Holdco will provide each individual who served as a director or officer of the Company. The Company hereby confirms its obligations IBS or Info at any time prior to the Seller under such instruments and its intention to honor such obligations.
(b) For ten Effective Time with liability insurance for a period of six years from and after the Closing DateEffective Time no less favorable in coverage and amount than any applicable insurance of IBS or Info, as the Company shall maintain case may be, in effect immediately prior to the current provisions regarding limitation Effective Time; PROVIDED, HOWEVER, that if the existing liability insurance expires, or is terminated or canceled by the insurance carrier during such six-year period, Holdco will use its reasonable best efforts to obtain comparable insurance for the remainder of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Datesuch period on a commercially reasonable basis; providedPROVIDED FURTHER, however, that in the Company event any claim or claims are asserted within such period, all rights to indemnification in respect of such claim or claims shall continue until the final disposition thereof;
(ii) After the Effective Time, Holdco (A) will not take or permit to be taken any action to alter or impair any exculpatory or indemnification provisions now existing in the certificate of incorporation, by-laws or indemnification and employment agreements of IBS, Info or any of their respective Subsidiaries for the benefit of any individual who served as a director or officer of IBS, Info or any of their respective Subsidiaries (an "INDEMNIFIED PARTY") at any time prior to the Effective Time (except as may amend be required by applicable law), and (B) shall, and shall the applicable Surviving Corporation to, honor and fulfill such provisions so long until the date which is six years from the Effective Time (except as may be required by applicable law); PROVIDED, HOWEVER, that in the event any claim or claims are asserted within such amendment does not materially and adversely affect period, all rights to indemnification in respect of such claim or claims shall continue until the Sellerfinal disposition thereof.
(ciii) For ten years from To the extent clauses (i) and after the Closing Date(ii) above shall not serve to indemnify and hold harmless an Indemnified Party, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior Holdco, subject to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which areof this clause (iii), in will indemnify, for a period of six years from the aggregateEffective Time, no less advantageous to the insuredfullest extent permitted under applicable law, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless each Indemnified Party from and defend the Seller against any and all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, liabilitiesexpenses and fees, damages, judgments, fines (including all court costs and reasonable attorneys’ ' fees and expenses) incurred by Seller , resulting from, arising out of, relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to caused by this Agreement or the Irrevocable Proxy or any of the transactions contemplated hereby and therebyherein; PROVIDED, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to HOWEVER, that in the above paragraphs event any claim or claims are asserted or threatened within such six-year period, all rights to indemnification in respect of this Section 15 and any such claim or claims shall apply to continue until final disposition of any and all such Claims whether or not arising out ofclaims. Any Indemnified Party wishing to claim indemnification under this clause (iii), based upon or related notwithstanding anything to the Seller’s service as a director contrary in the provisions set forth in the certificate of the Company. The Company may elect to compromise incorporation, by-laws or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the twoother agreements respecting indemnification of directors or officers of IBS, the Company is solely obligated IBS Surviving Corporation, Info or the Info Surviving Corporation, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Holdco thereof, but the failure to satisfy and discharge so notify shall not relieve Holdco of any liability it may have to such Indemnified Party if such failure does not materially prejudice Holdco. In the Claimevent of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (iiA) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller Holdco shall have the right following the Effective Time to select assume the defense thereof and Holdco shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Holdco fails to assume such defense or counsel for the Indemnified Party advises that there are issues which raise conflicts of interest between Holdco or the applicable Surviving Corporation, on the one hand, and the Indemnified Parties, on the other hand, the Indemnified Parties may retain counsel satisfactory to them, and Holdco shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; PROVIDED, HOWEVER, that Holdco shall be obligated to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, in which case Holdco need only pay for separate counsel to participate the extent necessary to resolve such conflict; (B) the Indemnified Parties will reasonably cooperate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.matter; and
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Ibs Interactive Inc), Agreement and Plan of Reorganization (Infonautics Inc)
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation or and Bylaws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and that certain Indemnity exculpation of present and former directors, officers, employees and agents of the Company than are set forth in the Certificate of Incorporation and By-laws of the Company as of the date of this Agreement, dated as which provisions shall not be amended, repealed or otherwise modified for a period of January 1six years from the Effective Time in any manner that would affect adversely the rights of individuals, 2000who were directors, by and between officers, employees or agents of the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations at or prior to the Seller under Effective Time, unless such instruments and its intention to honor such obligationsmodification shall be required by Law.
(b) For ten years from Prior to the fifth Business Day preceding the Acceptance Time, Parent shall have the right, but not the obligation, to purchase a six-year prepaid “tail policy” on terms and after conditions (in both amount and scope) providing substantially equivalent benefits as the Closing Datecurrent policies of officers’ and directors’ liability insurance covering acts or omissions occurring at or prior to the Effective Time (“D&O Insurance”) maintained by the Company, covering without limitation the transactions contemplated hereby (the “Tail Policy”). In the event that Parent does not purchase a Tail Policy as provided in the preceding sentence, the Company shall have the right to purchase, prior to the Effective Time, the Tail Policy. If neither Parent nor the Company has purchased a Tail Policy, Parent and the Surviving Corporation shall maintain in effect the current provisions regarding limitation Company’s existing D&O Insurance for a period of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of not less than six years after the Closing DateEffective Time; provided, however, that Parent may substitute therefor policies of substantially equivalent coverage and amounts containing terms no less favorable to such former directors or officers; provided that Parent and the Surviving Corporation shall use their respective reasonable best efforts to ensure that any substitution or replacement of existing policies shall not result in any gaps or lapses of coverage with respect to facts, events, acts or omissions occurring at or prior to the Effective Time; provided, further, that if the existing D&O Insurance expires or is terminated or cancelled during such period, then Parent or the Surviving Corporation shall obtain substantially similar D&O Insurance; provided further, however, that in no event shall Parent or Purchaser be required to pay annual premiums for insurance under this Section 6.4(b) in excess of 250% of the current annual premiums paid by the Company may amend for such provisions so long as any such amendment does not materially and adversely affect the Sellerinsurance.
(c) For ten years from and Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Closing DateEffective Time) is made against any individual who is now, or who has been at any time prior to the Company shall maintain in effect date hereof, or who becomes prior to the current policies Effective Time, a director, officer, employee or agent of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring Company, on or prior to the Seller’s resignation as a director sixth anniversary of the Company (provided that Effective Time, the Company may substitute therefor policies provisions of at least this Section 6.4 shall continue in effect until the same coverage and amounts containing terms and conditions which arefinal disposition of such claim, in the aggregateaction, no less advantageous to the insuredsuit, so long as the substitute insurer proceeding or carrier has a Best’s rating that is no lower than AX)investigation.
(d) The Company covenants contained in this Section 6.4 are intended to be for the benefit of, and shall indemnifybe enforceable by, hold harmless each of the indemnified parties and defend the Seller against their respective heirs and legal Representatives and shall not be deemed exclusive of any and other rights to which an indemnified party is entitled, whether pursuant to Law, contract or otherwise. Parent shall pay all claimsexpenses, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) fees, that may be incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations persons referred to in the above paragraphs of this Section 15 and shall apply to 6.4 in connection with their successful enforcement of their rights provided in this Section 6.4.
(e) In the event that the Parent or the Surviving Corporation or any and all such Claims whether of its successors or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if assigns (i) consolidates with or merges into any other person and shall not be the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the Company makes reasonably adequate provision to satisfy the Seller successors or assigns of the Company’s ability to satisfy and discharge Parent or the claimSurviving Corporation, and (iii) as the Claim involves solely monetary damages (collectivelycase may be, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses succeed to the Seller, the Seller shall have the right to select separate counsel to participate obligations set forth in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxySection 6.4.
Appears in 2 contracts
Samples: Merger Agreement (Kinetic Concepts Inc /Tx/), Merger Agreement (Lifecell Corp)
Insurance and Indemnification. (ai) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity Parent will provide each individual who served as a director or officer of the Company. The Company hereby confirms its obligations at any time prior to the Seller under Effective Time with liability insurance for a period of six years after the Effective Time no less favorable in coverage and amount than any applicable insurance of the Company in effect immediately prior to the Effective Time provided, however, if the existing liability insurance expires, or is terminated or canceled by the insurance carrier during such instruments and six year period, the Surviving Corporation will use its intention best efforts to honor obtain as much liability insurance (no less favorable in coverage) as can be obtained for the remainder of such obligationsperiod for a premium not in excess (on an annualized basis) of 200% of the last annual premium paid prior to the date hereof.
(bii) For ten After the Effective Time, Parent (A) will not take or permit to be taken any action to alter or impair any exculpatory or indemnification provisions now existing in the certificate of incorporation, by-laws or indemnification and employment agreements of the Company or any of its Subsidiaries for the benefit of any individual who served as a director or officer of the Company or any of its Subsidiaries (an "INDEMNIFIED PARTY") at any time prior to the Effective Time (except as may be required by applicable law), and (B) shall cause the Surviving Corporation to honor and fulfill such provisions until the date which is six years from the Effective Time (except as may be required by applicable law); provided, however, in the event any claim or claims are asserted within such period, all rights to indemnification in respect of such claim or claims shall continue until the final disposition thereof.
(iii) To the extent clauses (i) and (ii) above shall not serve to indemnify and hold harmless an Indemnified Party, Parent, subject to the terms and conditions of this clause (iii), will indemnify, for a period of six years from the Effective Time, to the fullest extent permitted under applicable law, each Indemnified Party from and against any and all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, expenses and fees, including all court costs and reasonable attorneys' fees and expenses, resulting from, arising out of, relating to or caused by this Agreement or any of the transactions contemplated herein; provided, however, in the event any claim or claims are asserted or threatened within such six-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. Any Indemnified Party wishing to claim indemnification under this clause (iii), notwithstanding anything to the contrary in the provisions set forth in the Company's certificate of incorporation, by-laws or other agreements respecting indemnification of directors or officers, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof, but the failure to so notify shall not relieve Parent of any liability it may have to such Indemnified Party if such failure does not materially prejudice Parent. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Closing DateEffective Time), (A) Parent or the Surviving Corporation shall have the right following the Effective Time to assume the defense thereof and Parent shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Parent or the Surviving Corporation fails to assume such defense or counsel for Parent advises that there are issues which raise conflicts of interest between Parent or the Surviving Corporation, on the one hand, and the Indemnified Parties, on the other hand, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification ofIndemnified Parties may retain counsel satisfactory to them, and advancement the Company, Parent or the Parent Subsidiary shall pay all reasonable fees and expenses of expenses to, directors such counsel for the Indemnified Parties promptly as contained in its Certificate of Incorporation and Bylaws as of the Closing Datestatements therefor are received; provided, however, that Parent shall be obligated to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, in which case Parent need only pay for separate counsel to the extent necessary to resolve such conflict; (B) the Indemnified Parties will reasonably cooperate in the defense of any such matter; and (C) Parent shall not be liable for any settlement effectuated without its prior written consent, which consent shall not be unreasonably withheld or delayed. Parent shall not settle any action or claim identified in thisss.5(j)(iii) in any manner that would impose any liability or penalty on an Indemnified Party not paid by Parent or the Surviving Corporation without such Indemnified Party's prior written consent, which consent shall not be unreasonably withheld or delayed.
(iv) Notwithstanding anything contained in clause (iii) above, Parent shall not have any obligation hereunder to any Indemnified Party (A) if the indemnification of such Indemnified Party by Parent in the manner contemplated hereby is prohibited by applicable law, (B) the conduct of the Indemnified Party relating to the matter for which indemnification is sought involved bad faith or willful misconduct of such Indemnified Party, or (C) with respect to actions taken by any such Indemnified Party in his or its individual capacity, including, without limitations, with respect to any matters relating, directly or indirectly, to the purchase, sale or trading of securities issued by the Company may amend other than a tender or sale pursuant to a stock tender agreement or (D) if such provisions so long as Indemnified Party shall have breached its obligation to cooperate with Parent in the defense of any claim in respect of which indemnification is sought and such amendment does not breach (x) materially and adversely affects Parent's defense of such claim or (y) will materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the Parent's defense of such action on his behalf, at the expense claim if such breach is not cured within ten days after notice of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject breach is delivered to the foregoing, if the Company elects to compromise or defend Indemnified Party and such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, breach is not cured during such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxyperiod.
Appears in 2 contracts
Samples: Merger Agreement (Viatel Inc), Merger Agreement (Destia Communications Inc)
Insurance and Indemnification. (ai) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity Surviving Corporation will provide each individual who served as a director or officer of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or any time prior to the Seller’s resignation as Effective Time with liability insurance for a director period of six years after the Effective Time no less favorable in coverage and amount than any applicable insurance of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous effect immediately prior to the insuredEffective Time; PROVIDED, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, howeverHOWEVER, that if the parties existing liability insurance expires, or is terminated or canceled by the insurance carrier during such six-year period, the Surviving Corporation will use its reasonable best efforts to obtain comparable insurance for the remainder of such period on a commercially reasonable basis; PROVIDED FURTHER, HOWEVER, that in the event any claim or claims are asserted within such period, all rights to indemnification in respect of such claim or claims shall continue until the final disposition thereof;
(ii) After the Effective Time, Surviving Corporation (A) will not take or permit to be taken any action shall include both to alter or impair any exculpatory or indemnification provisions now existing in the certificate of incorporation, by-laws or indemnification and employment agreements of the Company and or any of its Subsidiaries for the Seller, and the Seller shall have reasonably concluded that counsel selected by benefit of any individual who served as a director or officer of the Company has a conflict or any of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, its Subsidiaries (an "INDEMNIFIED PARTY") at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject prior to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days Effective Time (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do soexcept as may be required by applicable law), and (B) shall cause the Seller shall reasonably cooperateSurviving Corporation to honor and fulfill such provisions until the date which is six years from the Effective Time (except as may be required by applicable law); PROVIDED, at the expense of the CompanyHOWEVER, that in the compromise ofevent any claim or claims are asserted within such period, or defense against, such Claim (it being understood the Seller shall be entitled all rights to participate indemnification in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense respect of such Claim). If claim or claims shall continue until the Company chooses final disposition thereof.
(iii) To the extent clauses (i) and (ii) above shall not serve to defend any Claimindemnify and hold harmless an Indemnified Party, the Seller shallSurviving Corporation, subject to receipt the terms and conditions of this clause (iii), will indemnify, for a reasonable confidentiality agreementperiod of six years from the Effective Time, make available to the Company any booksfullest extent permitted under applicable law, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.each Indemnified
Appears in 2 contracts
Samples: Merger Agreement (Netrix Corp), Merger Agreement (Netrix Corp)
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations to For a period of six years from and after the Seller under the Company’s Certificate Effective Time, each of Incorporation or Bylaws Symmetry and that certain Indemnity AgreementAcquisitionco shall indemnify and hold harmless, dated as and provide advancement of January 1expenses to, 2000all past and present directors, by officers and between employees of the Company and all Subsidiaries (in all of such capacities):
(i) to the Seller, whereby same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by the Company has agreed or any Company Subsidiaries pursuant to indemnify its articles of incorporation, by-laws and indemnification agreements, if any, in existence on the Seller date hereof with any of its directors, officers and employees; and
(ii) without limitation to clause (i), to the fullest extent permitted by Law, in his capacity as a director each case for acts or omissions (excluding acts or omissions which constitute gross negligence or fraud) occurring at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligationsArrangement).
(b) For ten years from Symmetry will not (unless it assumes such obligations and after gives written notice to the Closing Datebeneficiaries thereof to the extent it has their addresses), through the Company shall maintain in effect Pre-Acquisition Reorganization or otherwise, take any action where doing so materially adversely affects the current provisions regarding limitation ability of liability of directors and indemnification of, and advancement of expenses to, directors as contained in Symmetry to satisfy its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Sellerindemnity obligations referred to herein.
(c) For ten a period of six years from and after the Closing DateEffective Time, the Company each of Symmetry and Acquisitionco shall maintain in effect cause to be maintained (either directly or via run off insurance or insurance provided by an alternate provider) the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on any Company Subsidiaries (or prior any successor to the Seller’s resignation as a director of Company or the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”Subsidiaries) with respect to this Agreement claims arising from facts or events that occurred on or before the Irrevocable Proxy or the transactions contemplated hereby Effective Time, provided that each of Symmetry and therebyAcquisitionco will not be required, including without limitation the Company’s repurchase in order to maintain such directors’ and officers’ liability insurance and fiduciary liability insurance, to pay an annual premium in excess of 300% of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs cost of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoingexisting policies and, if the Company elects to compromise or defend annual premiums of such Claiminsurance coverage exceeds such percentage, it shall within 30 days (or sooner, if the nature each of the Claim so requires) notify the Seller of its intent to do so, Symmetry and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller Acquisitionco shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.obligated only
Appears in 2 contracts
Samples: Arrangement Agreement (Symmetry Holdings Inc), Arrangement Agreement (Symmetry Holdings Inc)
Insurance and Indemnification. (a1) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Effective Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification ofPhivida may, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provideddiscretion, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” policies of directors’ and officers’ liability insurance providing protection no less favourable in the aggregate to the protection provided by the policies maintained by Phivida and its Subsidiaries which are in effect immediately prior to the Company at not less than current levels with Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the Seller’s resignation as a director of Effective Date and Choom shall, or shall cause Phivida and its Subsidiaries to maintain such tail policies in effect without any reduction in scope or coverage for two (2) years from the Company (Effective Date; provided that the Company may substitute therefor policies Choom shall not be required to pay any amounts in respect of at least the same such coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous prior to the insured, so long as Effective Time and provided further that the substitute insurer cost of such policies shall not exceed 300% of Phivida’s current annual aggregate premium for policies currently maintained by Phivida or carrier has a Best’s rating that is no lower than AX)its Subsidiaries.
(d2) The Company shall indemnifyChoom shall, hold harmless following the Effective Date, cause Phivida to honour all rights to indemnification or exculpation now existing in favour of present and defend the Seller against any former employees, officers and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees directors of Phivida and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related its Subsidiaries to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if extent that they are (i) included in the Company expressly agrees in writing to the Seller thatConstating Documents of Phivida or any of its Subsidiaries, as between the two, the Company is solely obligated to satisfy and discharge the Claim, or (ii) the Company makes reasonably adequate provision to satisfy the Seller disclosed in Section 4.7(2) of the Company’s ability to satisfy and discharge the claimPhivida Disclosure Letter, and acknowledges that such rights under both (iiii) and (ii) shall survive the Claim involves solely monetary damages completion of the Plan of Arrangement and shall continue in full force and effect in accordance with their terms for a period of not less than six (collectively6) years from the Effective Date.
(3) If Phivida or any of its Subsidiaries or any of their respective successors or assigns
(i) consolidates with or merges into any other Person and is not a continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, Choom shall ensure that any such successor or assign (including, as applicable, any acquirer of substantially all of the “Litigation Conditions”properties and assets of Phivida or its Subsidiaries) assumes all of the obligations set forth in this Section 4.7.
(4) Choom shall act as agent and trustee of the benefits of the foregoing for the current and former directors and officers of Phivida for the purpose of Section 4.7(2); provided, however, that if . This Section 4.7 shall survive the parties in any action shall include both the Company execution and delivery of this Agreement and the Seller, completion of the Arrangement and the Seller shall have reasonably concluded that counsel selected be enforceable against Choom by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate Persons described in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expenseSection 4.7(2). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.
Appears in 2 contracts
Samples: Arrangement Agreement, Arrangement Agreement
Insurance and Indemnification. (a) The Certificate of Incorporation and the By-laws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification and elimination of liability that are set forth in the Certificate of Incorporation and the By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights of individuals, who were directors, officers, employees or agents of the Company hereby acknowledges its indemnification obligations at or prior to the Seller Effective Time, unless such modification shall be required by law.
(b) For a period of six (6) years after the Effective Time, Parent and the Surviving Corporation shall, jointly and severally, indemnify, defend and hold harmless each person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, an officer or director of the Company or any Company Subsidiary (collectively, the “Indemnified Parties”) against all expenses (including reasonable attorneys’ fees), judgements, and amounts paid in settlement actually and reasonably incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation (a “Claim”) by reason of the fact that the Indemnified Party is or was a director or officer of the Company or any Company Subsidiary and pertaining to any matter existing or arising out of actions or omissions occurring at or prior to the Effective Time including, without limitation, any Claim arising out of this Agreement or any of the Transactions, whether asserted or claimed prior to, at or after the Effective Time; provided, however, that neither Parent nor the Surviving Corporation shall be required to indemnify any Indemnified Party pursuant hereto if it shall be determined that the Indemnified Party acted in bad faith or not in a manner such party believed to be in or not opposed to the best interests of the Company. Parent and the Surviving Corporation shall also, jointly and severally, advance expenses as incurred by Indemnified Parties to the fullest extent permitted under applicable law provided the person to whom such advances are made provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification. Notwithstanding the foregoing, (i) nothing contained in this Section 6.4 shall be deemed to grant any right to any Indemnified Party which is not permitted to be granted to an officer or director of the Company under Delaware law, assuming for such purposes that the Company’s Certificate of Incorporation or and Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, provide for the maximum indemnification permitted by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification oflaw, and advancement of expenses to, directors as contained (ii) no Indemnified Party shall be entitled to indemnification in its Certificate of Incorporation and Bylaws as of connection with any Claim initiated by the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the SellerIndemnified Party.
(c) For ten years from and after Without limiting any of the Closing Dateobligations of the Surviving Corporation set forth elsewhere in this Section 6.4, the Company Parent shall maintain in effect effect, during the current policies three (3)-year period commencing as of the Effective Time, a policy of directors’ and officers’ liability insurance maintained by for the Company at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director benefit of each of the Company (provided that the Company may substitute therefor policies of at least the same Indemnified Parties providing coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as Indemnified Parties than the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless coverage and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller terms of the Company’s ability to satisfy existing policy of directors’ and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”)officers’ liability insurance; provided, however, that Parent shall not be required to pay a per annum premium in excess of 150% of the per annum premium that the Company currently pays for its existing policy of directors’ and officers’ liability insurance (it being understood that, if the parties premium required to be paid by Parent for such policy would exceed such 150% amount, then the coverage of such policy shall be reduced to the maximum amount of coverage, if any, that may be obtained for a per annum premium in any action such 150% amount, and that if no such policy can be obtained for such 150% amount, Parent shall include both be relieved of its obligations to the extent such policy is unavailable), which annual premium the Company represents and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Companywarrants is currently $45,410; and provided further, however, that, prior to the Effective Time, the Company, with the consent of Parent, may purchase insurance for such three-year period on a prepaid non-cancelable basis, so long as the premium for such three-year period is not in excess of 200% of the per annum premium that the Company currently pays for its existing policy of directors’ and officers’ liability insurance in which case, Parent shall forfeit the right have no obligations to control the defense or settlement of any maintain such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxyinsurance.
Appears in 2 contracts
Samples: Merger Agreement (Dmi Furniture Inc), Merger Agreement (Flexsteel Industries Inc)
Insurance and Indemnification. (a1) The Company hereby acknowledges its indemnification obligations Prior to the Seller under Effective Date, Corporation shall purchase a pre-paid non-cancellable run-off directors’ and officers’ liability insurance policy providing protection to all present and former officers and directors of Corporation and its Subsidiaries no less favourable in the Companyaggregate to the protection provided by the policies maintained by Corporation and its Subsidiaries which are in effect immediately prior to the Effective Date and providing protection in respect of claims arising from facts or events which occurred on or prior to the Effective Date and Purchaser shall, or shall cause Corporation and its Subsidiaries to maintain such tail policies in effect without any reduction in scope or coverage for six (6) years from the Effective Date; provided that Purchaser shall not be required to pay any amounts in respect of such coverage prior to the Effective Time and provided further that the cost of such policies shall not exceed 300% (such amount, the “Base Premium”) of Corporation’s Certificate current annual aggregate premium for policies currently maintained by Corporation or any of Incorporation or Bylaws and its Subsidiaries; provided further however that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller if such insurance can only be obtained at a premium in his capacity as a director excess of the Company. The Company hereby confirms its obligations to Base Premium, Corporation may purchase the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current most advantageous policies of directors’ and officers’ liability insurance maintained by reasonably available for an annual premium not to exceed the Company at Base Premium, and Purchaser shall, or shall cause Corporation and its Subsidiaries to, maintain such coverage for six (6) years from the Effective Date.
(2) Purchaser shall cause Corporation and its Subsidiaries to honour all rights to indemnification or exculpation now existing in favour of present and former employees, officers and directors of Corporation and its Subsidiaries to the extent that any such indemnity agreements have been disclosed in the Corporation Disclosure Letter, and acknowledges that such rights, to the extent that they have been so disclosed, shall survive the completion of the Plan of Arrangement and shall continue in full force and effect in accordance with their terms for a period of not less than current levels with respect to acts or omissions occurring on or prior to six (6) years from the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)Effective Date.
(d3) The Company shall indemnify, hold harmless and defend the Seller against If Corporation or any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to of its Subsidiaries or arising out any of any claim, demand, asserted liability, suit their respective successors or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if assigns (i) the Company expressly agrees in writing to the Seller thatconsolidates or amalgamates with or merges or liquidates into any other Person and is not a continuing or surviving corporation or entity of such consolidation, as between the twoamalgamation, the Company is solely obligated to satisfy and discharge the Claimmerger or liquidation, or (ii) the Company makes reasonably adequate provision transfers all or substantially all of its properties and assets to satisfy the Seller any Person, Purchaser shall ensure that any such successor or assign (including, as applicable, any acquirer of substantially all of the Company’s ability to satisfy properties and discharge the claim, and (iiiassets of Corporation or any of its Subsidiaries) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because assumes all of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate obligations set forth in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxySection 4.8.
Appears in 2 contracts
Samples: Arrangement Agreement (Shockwave Medical, Inc.), Arrangement Agreement (Neovasc Inc)
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Effective Date, the Company TMX Group shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” policies of directors’ and officers’ liability insurance providing protection no less favourable in the aggregate to the protection provided by the policies maintained by TMX Group and its Subsidiaries which are in effect immediately prior to the Company at not less than current levels with Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the Seller’s resignation as a director Effective Date and LSEG will, or will cause TMX Group and its Subsidiaries to, maintain such tail policies in effect without any reduction in scope or coverage for six (6) years from the Effective Date; provided, that LSEG shall not be required to pay any amounts in respect of such coverage prior to the Company (Effective Time and provided further that the Company may substitute therefor cost of such policies shall not exceed 300% of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer TMX Group’s current annual aggregate premium for policies currently maintained by TMX Group or carrier has a Best’s rating that is no lower than AX)its Subsidiaries.
(db) LSEG agrees that it shall honour all rights to indemnification or exculpation now existing in favour of present and former employees, officers and directors of TMX Group and its Subsidiaries to the extent that they are disclosed in the TMX Group Data Room or are otherwise on usual terms for indemnity arrangements, and acknowledges that such rights, to the extent that they are disclosed in the TMX Group Data Room or are otherwise on usual terms for indemnity arrangements, shall survive the completion of the Plan of Arrangement and shall continue in full force and effect in accordance with their terms for a period of not less than six (6) years from the Effective Date.
(c) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs provisions of this Section 15 5.11 are intended for the benefit of, and shall apply be enforceable by, each insured or indemnified Person, his or her heirs and his or her legal representatives and, for such purpose, TMX Group hereby confirms that it is acting as trustee on their behalf, and agrees to any and all such Claims whether or not arising out ofenforce the provisions of this Section on their behalf. Furthermore, based upon or related to this Section 5.11 shall survive the Seller’s service termination of this Agreement as a director result of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller occurrence of the Company’s ability to satisfy and discharge the claim, and Effective Date for a period of six (iii6) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxyyears.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement
Insurance and Indemnification. (a) The Subject to applicable law, for a period of six (6) years following completion of the Term, the Company hereby acknowledges its indemnification obligations will: (i) indemnify Employee and his heirs and representatives to the Seller under extent provided in the Company’s Certificate By-Laws in effect on the date of Incorporation this Agreement and will not amend, reduce or Bylaws and that certain Indemnity Agreement, dated as limit rights of January 1, 2000, by and between indemnity afforded to them or the ability of the Company to indemnify them, not hinder, delay or make more difficult the exercise of such rights of indemnity and (ii) maintain director and officer liability insurance coverage providing Employee with coverage (1) at least as favorable as the Seller, whereby policies in effect immediately prior to the date hereof covering the Company’s directors and officers or (2) as favorable as is available at a cost to the Company has agreed of up to indemnify 125% of the Seller premiums currently being paid by the Company. The Company’s By-Law provision regarding indemnification, in effect on the date of this Agreement is attached as Exhibit “A” to this Agreement.
(b) If any claim is (or claims are) made against Employee and his capacity heirs and representatives, including legal counsel, arising from Employee’s services as a director director, officer and employee of the Company, within six (6) years from the expiration of the Term, the provisions of this Paragraph 15 respecting the Company’s By-Laws shall continue in effect until the final disposition of all such claims.
(c) The Company agrees to provide written notice to Employee immediately upon learning of any claim or threatened claim against Employee by any third party relating to or arising out of the business of the Company or Employee’s prior service as a director, officer, employee or controlling shareholder of the Company. The Company hereby confirms its obligations further agrees to the Seller under provide to Employee any complaints and other relevant documentation related to such instruments and its intention to honor claims immediately upon receipt of such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)documentation.
(d) The Company shall indemnify, hold harmless Employee agrees that he will cooperate with and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation assist the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected requested by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in its defense of any action or proceeding against the compromise ofCompany, its directors, officers, employees or defense against, such Claim (it being understood the Seller shall be entitled to participate affiliates arising out of or in any way related to any transactions, events or other matters which occurred during the period of his employment with the Company, to the extent that such defense at its own expense)cooperation and assistance will not impair Employee’s legal rights or remedies or increase the likelihood that Employee will incur any liabilities as a result thereof. If This Agreement shall not preclude Employee from testifying in such action or proceeding. In the event that Employee does cooperate with and assist the Company elects not to compromise in its defenses of such an action or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditionsproceeding, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged agrees to reimburse the Seller the Employee for all reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim incurred by the Company that the Seller has breached this Agreement or the Irrevocable ProxyEmployee in providing such assistance.
Appears in 2 contracts
Samples: Employment Agreement (Mace Security International Inc), Employment Contract (Mace Security International Inc)
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Effective Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” policies of directors’ and officers’ liability insurance providing protection no less favourable in the aggregate to the protection provided by the policies maintained by the Company at not less than current levels with and its Subsidiaries which are in effect immediately prior to the Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the SellerEffective Date and the Parent will, or will cause the Company and its Subsidiaries to, maintain such tail policies in effect without any reduction in scope or coverage for six years from the Effective Date; provided that (i) the Parent shall not be required to pay any amounts in respect of such coverage prior to the Effective Time, and (ii) the cost of such policy shall not exceed 400% of the Company’s resignation as a director current annual aggregate premium for policies currently maintained by the Company or its Subsidiaries.
(b) The Parent agrees that it shall honour all rights to indemnification or exculpation now existing in favour of present and former officers and directors of the Company and its Subsidiaries, and acknowledges that such rights shall survive the completion of the Plan of Arrangement and shall continue in full force and effect for a period of not less than six (provided 6) years from the Effective Date.
(c) If the Company or the Parent or any of their respective successors or assigns shall (i) amalgamate, consolidate with or merge or wind-up into any other person and shall not be the continuing or surviving corporation or entity; or (ii) transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns and transferees of the Company may substitute therefor policies of at least or the same coverage and amounts containing terms and conditions which areParent, in the aggregate, no less advantageous to the insured, so long as the substitute insurer case may be, shall assume all of the obligations of the Company or carrier has a Best’s rating that is no lower than AX)the Parent, as applicable, set forth in this Section 5.15.
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs provisions of this Section 15 5.15 are intended for the benefit of, and shall apply to any be enforceable by, each insured or indemnified Person, his or her heirs and all his or her legal representatives and, for such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the twopurpose, the Company hereby confirms that it is solely obligated to satisfy and discharge acting as agent on their behalf. Furthermore, this Section 5.15 shall survive the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller termination of this Agreement as a result of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because occurrence of the availability Effective Date for a period of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxysix years.
Appears in 2 contracts
Samples: Arrangement Agreement (SilverCrest Metals Inc.), Arrangement Agreement (Coeur Mining, Inc.)
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations For a period of six ----------------------------- years after the Effective Time, Parent shall, or shall cause the Surviving Corporation (or any successor to the Seller under Surviving Corporation) to indemnify, defend and hold harmless the Company’s Certificate present and former directors and officers of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the SellerCompany Subsidiaries, whereby the Company has agreed to indemnify the Seller in his capacity as a director and persons who become any of the Company. The Company hereby confirms its obligations foregoing prior to the Seller under such instruments Effective Time (each an "Indemnified Party") against all losses, claims, ----------------- damages, liabilities, costs, fees and its intention to honor such obligations.
expenses (bincluding reasonable fees and disbursements of counsel) For ten years from and after the Closing Datejudgments, the Company shall maintain fines, losses, claims, liabilities and amounts paid in effect the current provisions regarding limitation settlement arising out of liability or in connection with any claim, action, suit, proceeding, or investigation, whether criminal, civil, administrative or investigative, arising out of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on at or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines Effective Time (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”Transactions); provided, however, that Parent shall not be required to indemnify -------- ------- any Indemnified Party pursuant hereto if it shall be determined that the parties Indemnified Party acted in any action shall include both the Company bad faith and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has not in a conflict of interest because of the availability of different manner such party believed to be in or additional defenses not opposed to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense best interests of the Company. Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law provided the person to whom such advances are made provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification. Parent and the Company agree that in the event any claim or claims are asserted or made within the six-year period contemplated by this Section, all rights to indemnification in respect of any such claim or claims shall continue until disposition of any and all such claims.
(b) Parent or the Surviving Corporation shall maintain the Company's existing officers' and directors' liability insurance ("D&O --- Insurance") for a period of not less than three years after the Effective Time; --------- provided, however, that Parent may substitute therefor policies of substantially -------- ------- equivalent coverage and amounts containing terms no less favorable to such former directors or officers; provided, further, that if the existing D&O -------- Insurance expires or is terminated or cancelled during such period, then Parent or the Surviving Corporation shall use reasonable best efforts to obtain substantially similar D&O Insurance; provided further, however, that in no event -------- shall Parent be required to pay aggregate premiums for insurance under this Section 6.6(b) in excess of 150% of the average of the aggregate premiums paid by the Company in 1998, 1999 and 2000 on an annualized basis for such purpose (the "Average Premium"); and provided, further, that if Parent or the Surviving --------------- -------- Corporation is unable to obtain the amount of insurance required by this Section 6.6(b) for such aggregate premium, Parent or the Surviving Corporation shall forfeit the right to control the defense or settlement obtain as much insurance as can be obtained for an annual premium not in excess of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature 150% of the Claim so requiresAverage Premium. The budgeted amount for D&O Insurance for fiscal year 2002 is set forth on Section 6.6(b) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxyDisclosure Schedule.
Appears in 2 contracts
Samples: Merger Agreement (Lee Sara Corp), Merger Agreement (Lee Sara Corp)
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification ofACE*COMM shall, and shall cause the Surviving Corporation to, (i) indemnify and hold harmless, and provide advancement of expenses to, directors all past and present directors, officers, consultants and employees of i3 and its Subsidiaries (in all of their capacities) (A) to the same extent such individuals are indemnified or have the right to advancement of expenses as contained in its of the date of this Agreement by i3 pursuant to the Amended and Restated Certificate of Incorporation and the Amended Bylaws as of i3 and indemnification agreements, if any, in existence on the Closing Date; provideddate hereof with any directors, howeverofficers, that consultants and employees of i3 and its Subsidiaries and (B) without limitation to clause (A), to the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Datefullest extent permitted by law, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to each case for acts or omissions occurring on at or prior to the Seller’s resignation as a director Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the Company transactions contemplated hereby) and (provided that ii) include and cause to be maintained in effect in each of ACE*COMM’s (or any successor’s) and the Company may substitute therefor policies Surviving Corporation’s (or any successor’s) respective certificate or articles of at least incorporation and bylaws after the same coverage Effective Time, provisions regarding elimination of liability of directors, indemnification of officers, consultants, directors and amounts containing terms employees and conditions advancement of expenses which are, in the aggregate, no less advantageous to the insuredintended beneficiaries than the corresponding provisions contained in the current Amended and Restated Certificate of Incorporation and Amended Bylaws of i3.
(b) Prior to the Closing, i3 shall procure a directors’ and officers’ liability insurance policy of substantially the same coverage and in amounts greater than or equal to $10,000,000 or otherwise reasonably acceptable to ACE*COMM containing terms and conditions which are generally not less advantageous than i3’s current policy with respect to acts or omissions occurring prior to the Effective Time which were committed by such officers and directors in their capacity as such.
(c) In the event ACE*COMM or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, to the extent necessary, proper provision shall be made so long as that the substitute insurer or carrier has a Best’s rating that is no lower than AX)successors and assigns of ACE*COMM assume the obligations set forth in this section.
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs provisions of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if 6.7 (i) are intended to be for the Company expressly agrees in writing to the Seller thatbenefit of, as between the twoand will be enforceable by, the Company is solely obligated to satisfy each indemnified party, his or her heirs and discharge the Claim, his or her representatives and (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claimare in addition to, and (iii) the Claim involves solely monetary damages (collectivelynot in substitution for, the “Litigation Conditions”); provided, however, any other rights to indemnification or contribution that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense person may have by contract or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxyotherwise.
Appears in 2 contracts
Samples: Merger Agreement (Ace Comm Corp), Merger Agreement (Ace Comm Corp)
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate Each of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the SellerBank shall use commercially reasonable efforts to maintain insurance (including directors’ and officers’ liability insurance) in such amounts as are reasonable to cover such risks as are customary in relation to the character and location of its properties and the nature of its business, whereby with such coverage and in such amounts per policy not less than that maintained by the Company has agreed to indemnify and the Seller in his capacity Bank as a director of the Companydate of this Agreement. The Company hereby confirms its obligations will promptly inform Parent if the Company or the Bank receives notice from an insurance carrier that (i) an insurance policy will be canceled or that coverage thereunder will be reduced or eliminated, or (ii) premium costs with respect to the Seller under such instruments and its intention to honor such obligationsany policy of insurance will be substantially increased.
(b) For ten years from and after Prior to the Closing DateEffective Time, in close consultation with Parent, the Company shall maintain in effect purchase a directors’ and officers’ liability tail insurance policy with respect to the current provisions regarding limitation of liability of directors Company’s existing basic and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of excess directors’ and officers’ liability insurance maintained by the Company at not less than current levels or with respect to acts or omissions occurring on or prior coverage and amount that are no less favorable in any material respect to such directors and officers than the SellerCompany’s resignation existing policies as of the date hereof (the “D&O Tail”), in either case, that, for a director period of six years following the Effective Time, will provide directors’ and officers’ liability insurance that serves to reimburse the present and former officers and directors of the Company (provided that determined as of the Company may substitute therefor policies of at least Effective Time) with respect to claims against such directors and officers arising from facts or events occurring before the same coverage and amounts containing terms and conditions which are, in Effective Time (including the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AXtransactions contemplated by this Agreement).
(dc) The Company shall indemnify, hold harmless Parent and defend the Seller against any and Merger Sub agree that all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating rights to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase indemnification existing in favor of the Shares current or former directors and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director officers of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation ConditionsIndemnified Parties”); provided, however, that if the parties ) as provided in any action shall include both the Company Charter or Company Bylaws as in effect on the date of this Agreement for acts or omissions occurring prior to the Effective Time shall be assumed and performed by Parent and shall continue in full force and effect until the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because expiration of the availability applicable statute of different limitations with respect to any claims against such directors or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense officers arising out of such action on his behalfacts or omissions, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election except as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim otherwise required by the Company that the Seller has breached this Agreement or the Irrevocable Proxyapplicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Green Bancorp, Inc.), Merger Agreement (Green Bancorp, Inc.)
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations to the Seller under the CompanyParent will, or will cause Acquisitionco to, at Parent’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreementoption, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.either:
(bi) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained without any reduction in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does scope or coverage for not materially and adversely affect the Seller.
less than six (c6) For ten years from and after the Closing Date, the Company shall maintain in effect the current Effective Date customary policies of directors’ and officers’ liability insurance providing protection no less favourable to the protection provided by the policies maintained by E&C in favour of the Company at not less than directors and officers of E&C and each of its Subsidiaries which are in effect immediately prior to the Effective Date and providing protection in respect of claims arising from facts or events which occurred prior to the Effective Time; or
(ii) purchase as an extension of E&C’s current levels insurance policies, prepaid non cancellable run-off directors’ and officers’ liability insurance providing coverage comparable to that contained in E&C’s existing policy for six (6) years from the Effective Time with respect to acts claims arising from or omissions occurring on related to facts or events that occurred at or prior to the Seller’s resignation as a director Effective Time.
(b) Parent agrees that all rights to indemnification or exculpation existing in favour of the Company directors or officers of E&C or any of its Subsidiaries as at the date of the May 12, 2005 annual meeting of shareholders as provided in E&C’s articles shall survive the transactions contemplated hereby and shall continue in full force and effect for a period of not less than six years from the Effective Time. For a period of six (provided 6) years from the Effective Date, Parent will, or will cause Acquisitionco or E&C to, perform the obligations of E&C under such rights.
(c) In the event E&C or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger; or (ii) transfers all or substantially all of its properties and assets to any person, then, and in such case, proper provision shall be made so that such successors and assigns of E&C or, at Parent’s option, Parent, shall assume the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, obligations set forth in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)this Section 6.1.
(d) The Company This Article 6 shall indemnify, hold harmless and defend survive the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase consummation of the Shares Arrangement, is intended to benefit E&C and the Options. This indemnification obligation is separate each of its directors and apart from the obligations referred to in the above paragraphs of this Section 15 officers and their respective heirs and personal representatives and shall apply to any be enforceable by such directors and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense officers and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy their respective heirs and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxypersonal representatives.
Appears in 2 contracts
Samples: Arrangement Agreement (Sexton Roger), Arrangement Agreement (Elephant & Castle Group Inc)
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Effective Date, the Company Target shall maintain purchase, in effect consultation with the current provisions regarding limitation of liability of directors and indemnification ofPurchaser, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current customary “tail” or “run off” policies of directors’ and officers’ liability insurance providing protection no less favourable in the aggregate than the protection provided by the policies maintained by the Company at not less than current levels with Target and its Subsidiaries which are in effect immediately prior to the Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the Seller’s resignation as a director of Effective Date and the Company (Purchaser will, or will cause the Target and its Subsidiaries to maintain such tail policies in effect without any reduction in scope or coverage for six years from the Effective Date; provided that the Company may substitute therefor policies Purchaser shall not be required to pay any amounts in respect of at least the same such coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous prior to the insuredEffective Time.
(b) The Purchaser shall, so long from and after the Effective Time, honour all rights to indemnification or exculpation now existing in favour of present and former employees, officers and directors of the Target and the Subsidiaries (each, an “Indemnified Person”) and acknowledges that such rights shall survive the completion of the Transaction and shall continue in full force and effect in accordance with their terms for a period of not less than six years from the Effective Date.
(c) If the Purchaser, the Target or its Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not a continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, the Purchaser shall ensure that any such successor or assign (including, as applicable, any acquiror of substantially all of the substitute insurer properties and assets of the Target or carrier has a Best’s rating that is no lower than AX)the Subsidiaries) assumes all of the obligations set forth in this Section 4.13.
(d) The Company This Section 4.13 shall indemnifysurvive the consummation of the Transaction and is intended to be for the benefit of, hold harmless and defend shall be enforceable by, each insured or Indemnified Person and his or her heirs, executors, administrators and personal representatives and shall be binding on the Seller against any Target and all claimsits successors and assigns, lossesand, liabilitiesfor such purpose, damagesthe Target hereby confirms that it is acting as agent and trustee on behalf of the insured or Indemnified Persons; provided however, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out that no approval of any claim, demand, asserted liability, suit beneficiary of such trust will be required in connection with any amendment or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs variation of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related 4.13 prior to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxyEffective Date.
Appears in 1 contract
Samples: Transaction Agreement (National Bank of Canada /Fi/)
Insurance and Indemnification. (a) The Company hereby acknowledges SoCal shall permit Seller to use its indemnification obligations best efforts to extend the discovery period of its directors’ and officers’ liability insurance for a period of up to forty-eight (48) months with respect to all matters arising from facts or events which occurred before the Effective Time for which Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed would have had an obligation to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Dateofficers; provided, however, that the Company may amend total costs to Seller and SoCal of the premiums for such provisions so long coverage shall not exceed an aggregate of $32,000 (the “Insurance Amount”). If SoCal is unable to maintain or obtain the insurance called for by this Section 5.6 as any such amendment does not materially and adversely affect a result of the Seller.
(c) For ten years from and after preceding provision, SoCal shall use best efforts to obtain as much comparable insurance as is available for the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels Insurance Amount with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director Effective Time of the Company (provided Merger by such directors and officers in their capacities as such. If SoCal shall consolidate with or merge into any other entity and shall not be the continuing or surviving entity of such consolidation or merger or shall transfer all or substantially all of its assets to any other entity, then and in each case, proper provision shall be made so that the Company may substitute therefor policies successors and assigns of at least SoCal shall assume the same coverage and amounts containing terms and conditions which are, obligations set forth in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)this Section 5.6.
(db) The Company For a period of forty-eight (48) months after the Effective Time, SoCal shall, and shall indemnifycause its Subsidiaries to, hold harmless maintain and defend preserve the Seller against any rights to indemnification of officers and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees directors provided for in Seller’s Charter Documents as in effect on the date hereof with respect to indemnification for liabilities and expenses) incurred by Seller relating to or claims arising out of any claimacts, demandomissions, asserted liabilityevents, suit matters or proceeding of any kind (anycircumstances occurring or existing prior to the Effective Time, a “Claim”) with respect to this Agreement or including, without limitation, the Irrevocable Proxy or Merger and the other transactions contemplated hereby and therebyby this Agreement, including without limitation to the Company’s repurchase extent such rights to indemnification are not in excess of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs that permitted by applicable state or federal laws or regulatory authorities.
(c) The provisions of this Section 15 are intended to be for the benefit of, and shall apply be enforceable by, each director or officer of Seller and his or her heirs and representatives. There shall be no duplication of benefits pursuant to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if Section 5.6 (ia) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”b); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.
Appears in 1 contract
Samples: Merger Agreement (Belvedere SoCal)
Insurance and Indemnification. (a1) The Company hereby acknowledges From and after the Effective Time, Parent will fulfill, and will cause Xxxxxxxx and/or its successors to fulfill and honour in all respects its obligations pursuant to any indemnification obligations agreements between Xxxxxxxx and the present and former directors or officers of Xxxxxxxx or any Subsidiary thereof (the “Indemnified Parties”) in effect immediately prior to the Seller Effective Time and any indemnification provisions under the Company’s Certificate Charter Documents of Incorporation Xxxxxxxx or Bylaws applicable Laws, in each case, as in effect on the date hereof and that certain Indemnity Agreement, dated as of January 1, 2000, by and between to the Company and the Seller, whereby the Company has agreed to indemnify the Seller extent disclosed in his capacity as a director Schedule 7.06 of the CompanyDisclosure Letter and permitted by applicable Laws. The Company hereby confirms Parent shall cause Xxxxxxxx and/or its obligations successors to not amend, repeal or otherwise modify the provisions with respect to exculpation and indemnification contained in the Charter Documents of Xxxxxxxx as in effect on the date hereof for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, prior to the Seller under such instruments and its intention to honor such obligationsEffective Time, were directors or officers of Xxxxxxxx.
(b2) For ten Prior to the Effective Time, Xxxxxxxx shall (or if Xxxxxxxx is unable to, Parent shall) obtain and pay for “tail” insurance policies with a claims period of at least six years from and after the Closing Date, Effective Time from an insurance carrier with the Company shall maintain in effect the same or better credit rating xx Xxxxxxxx’x current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of insurance carrier with respect to directors’ and officers’ liability insurance maintained by the Company at and fiduciary liability insurance (collectively, “D&O Insurance”) with benefits and levels of coverage not less favourable than current levels those provided under Xxxxxxxx’x existing policies with respect to acts matters existing or omissions occurring on at or prior to the Seller’s resignation as a director of Effective Time (including in connection with this Arrangement Agreement or the Company (transactions or actions contemplated hereby), provided that the Company may substitute therefor aggregate cost of the D&O Insurance shall not exceed $1 million. If Xxxxxxxx or Parent for any reason fail to obtain such “tail” insurance policies as of at least the same coverage Effective Time, for a period of six years after the Effective Time, Parent will, or will cause Xxxxxxxx and/or its successors to, maintain in effect directors’ and amounts containing officers’ liability insurance covering those persons who are currently covered by Xxxxxxxx’x directors’ and officers’ liability insurance policy with respect to claims arising from facts or events that occurred on or before the Effective time on terms and conditions which are, in the aggregate, no less advantageous comparable to those applicable to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)current directors and officers of Xxxxxxxx.
(d3) The Company This Section 7.06 is intended to be for the benefit of, and shall indemnifybe enforceable by, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations Indemnified Parties referred to in the above paragraphs of this Section 15 herein, their heirs and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxypersonal representatives.
Appears in 1 contract
Samples: Arrangement Agreement (Cliffs Natural Resources Inc.)
Insurance and Indemnification. (a1) The Company hereby acknowledges its indemnification obligations Prior to the Seller under Effective Date, Corporation shall purchase a pre-paid non-cancellable run-off directors' and officers' liability insurance policy providing protection to all present and former officers and directors of Corporation and its Subsidiaries no less favourable in the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations aggregate to the Seller under such instruments protection provided by the policies maintained by Corporation and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain Subsidiaries which are in effect immediately prior to the current provisions regarding limitation Effective Date and providing protection in respect of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years claims arising from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts facts or omissions occurring events which occurred on or prior to the Seller’s resignation as Effective Date and Purchaser shall, or shall cause Corporation and its Subsidiaries to maintain such tail policies in effect without any reduction in scope or coverage for six (6) years from the Effective Date; provided that Purchaser shall not be required to pay any amounts in respect of such coverage prior to the Effective Time and provided further that the cost of such policies shall not exceed 250% (such amount, the "Base Premium") of Corporation's current annual aggregate premium for policies currently maintained by Corporation or any of its Subsidiaries; provided further however that if such insurance can only be obtained at a director premium in excess of the Company (provided that Base Premium, Corporation may purchase the Company may substitute therefor most advantageous policies of at least directors' and officers' liability insurance reasonably available for an annual premium not to exceed the same Base Premium, and Purchaser shall, or shall cause Corporation and its Subsidiaries to, maintain such coverage and amounts containing terms and conditions which are, in for six (6) years from the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)Effective Date.
(d2) The Company Purchaser shall indemnifycause Corporation and its Subsidiaries to honour all rights to indemnification or exculpation now existing in favour of present and former employees, hold harmless officers and defend directors of Corporation and its Subsidiaries to the Seller against extent that any such indemnity agreements have been disclosed in the Corporation Disclosure Letter, and all claimsacknowledges that such rights, lossesto the extent that they have been so disclosed, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or shall survive the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase completion of the Shares Plan of Arrangement and the Options. This indemnification obligation is separate shall continue in full force and apart effect in accordance with their terms for a period of not less than six (6) years from the obligations referred to in the above paragraphs Effective Date.
(3) If Corporation or any of this Section 15 and shall apply to its Subsidiaries or any and all such Claims whether of their respective successors or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if assigns (i) the Company expressly agrees in writing to the Seller thatconsolidates or amalgamates with or merges or liquidates into any other Person and is not a continuing or surviving corporation or entity of such consolidation, as between the twoamalgamation, the Company is solely obligated to satisfy and discharge the Claimmerger or liquidation, or (ii) the Company makes reasonably adequate provision transfers all or substantially all of its properties and assets to satisfy the Seller any Person, Purchaser shall ensure that any such successor or assign (including, as applicable, any acquirer of substantially all of the Company’s ability to satisfy properties and discharge the claim, and (iiiassets of Corporation or any of its Subsidiaries) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because assumes all of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate obligations set forth in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxySection 4.7.
Appears in 1 contract
Samples: Arrangement Agreement (Clementia Pharmaceuticals Inc.)
Insurance and Indemnification. (a1) The Parties agree that all rights to indemnification or exculpation now existing in favour of the present and former directors and officers of the Company or of any of its Subsidiaries or who acts as a fiduciary under any Company Plan (each such present or former director or officer of the Company hereby acknowledges or of any of its indemnification obligations Subsidiaries or fiduciary being herein referred to as an “Indemnified Party” and such Persons collectively being referred to as the “Indemnified Parties”) as provided in the constating documents of the Company or any of its Subsidiaries in effect as of the date of this Agreement or any Contract by which the Company or any of its Subsidiaries is bound and which is in effect as of the date hereof (including provisions relating to the Seller under advancement of expenses incurred in the Company’s Certificate defense of Incorporation any action or Bylaws suit), copies of which have been delivered to the Purchaser, will survive the completion of the Plan of Arrangement and that certain Indemnity Agreementcontinue in full force and effect and without modification for a period of not less than six years from the Effective Time, dated as with respect to actions or omissions of January 1the Indemnified Parties occurring prior to the Effective Time.
(2) The Purchaser will, 2000, by and between or will cause the Company and its Subsidiaries to, maintain in effect for six (6) years from the Seller, whereby Effective Date customary policies of directors’ and officers’ liability insurance providing protection no less favourable to the protection provided by the policies maintained by the Company has agreed to indemnify the Seller and its Subsidiaries which are in his capacity as a director of the Company. The Company hereby confirms its obligations effect immediately prior to the Seller under such instruments Effective Date and its intention providing protection in respect of claims arising from facts or events which occurred on or prior to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Effective Date; provided, however, that the Purchaser acknowledges and agrees that prior to the Effective Time, notwithstanding any other provision hereof, the Company may amend such provisions so long as may, at its option, purchase prepaid run-off directors’ and officers’ liability insurance on terms substantially similar to the directors’ and officers’ liability policies currently maintained by the Company, but providing coverage for a period of six (6) years from the Effective Date with respect to claims arising from or related to facts or events which occurred on or prior to the Effective Date; provided further, that the premiums for any such policies, including any policy the Purchaser puts in place, shall not exceed 250% of the current premium paid by the Company and its Subsidiaries (it being understood and agreed that in the event such directors’ and officers’ liability insurance cannot be obtained for 250% of such last annual premium or less, in the aggregate, the Purchaser shall only remain obligated to provide the greatest directors’ and officers’ liability insurance coverage as may be obtained for such amount).
(3) The provisions of this Section 4.12 are and are intended to be for the benefit of, and will be enforceable by, each Indemnified Party, his or her heirs, executors, administrators and other legal representatives and such rights will be held by the Company, and any successor to the Company (including any surviving corporation), in trust for such Persons and the Company hereby accepts such trust and agrees to hold the benefit of and enforce performance of such covenants on behalf of each Indemnified Party, his or her heirs, executors, administrators and other legal representatives; provided, however, that no approval of any beneficiary of such trust will be required in connection with an amendment does not materially and adversely affect or variation of this Section 4.12 prior to the SellerEffective Time.
(c4) For ten years from and after If the Closing DatePurchaser, the Company or any of its Subsidiaries or any of their respective 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 and assets to any Person, the Purchaser shall maintain ensure that any such successor or assign (including, as applicable, any acquirer of substantially all of the properties and assets of the Company or any of its Subsidiaries) assumes all of the obligations set forth in effect the current policies of this Section 4.12.
(5) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive or impair any rights to directors’ and officers’ liability insurance maintained by the Company at not less than current levels claims under any policy that is or has been in existence with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do soSubsidiaries for any of its respective directors, and the Seller shall reasonably cooperateofficers or other employees, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood and agreed that the Seller shall be entitled indemnification and other rights provided for in this Section 4.12 are not prior to participate or in substitution for any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend claims under such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.policies.
Appears in 1 contract
Insurance and Indemnification. (a1) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Effective Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” policies of directors’ and officers’ liability insurance providing protection no less favourable in the aggregate to the protection provided by the policies maintained by the Company at not less than current levels with and its Subsidiaries which are in effect immediately prior to the Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the SellerEffective Date and the Purchaser shall, or shall cause the Company and its Subsidiaries to maintain such tail policies in effect without any reduction in scope or coverage for six (6) years from the Effective Date, provided that the Purchaser shall not be required to pay any amounts in respect of such coverage prior to the Effective Time and provided further that the aggregate cost of such policies over such six (6) year period shall not exceed 300% of the Company’s resignation current annual aggregate premium for policies currently maintained by the Company or its Subsidiaries as a director set forth in the Company Disclosure Letter.
(2) The Purchaser shall, from and after the Effective Date, honour all rights to indemnification or exculpation now existing in favour of present and former employees, officers and directors of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous its Subsidiaries to the insured, so long as the substitute insurer or carrier has a Best’s rating extent that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if they (i) are included in the Constating Documents of the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claimor any of its Subsidiaries, (ii) are disclosed in Section 4.8(2) of the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claimDisclosure Letter, and or (iii) the Claim involves solely monetary damages exist under common law (collectivelyincluding, the “Litigation Conditions”without limitation, vicarious liability); provided, howeverstatute or legislation (including, that if the parties in any action shall include both the Company without limitation, health and the Sellersafety legislation), and acknowledges that such rights shall survive the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because completion of the availability Plan of different or additional defenses to the Seller, the Seller Arrangement and shall have the right to select separate counsel to participate continue in the defense full force and effect in accordance with their terms for a period of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.less than six
Appears in 1 contract
Samples: Arrangement Agreement
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Prior to the Seller under Effective Time, Sunward shall obtain and fully pay the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as premiums for a director non- cancellable extension of the Company. The Company hereby confirms its obligations directors’ and officers’ liability coverage of Sunward’s existing directors’ and officers’ insurance policies and Sunward’s existing fiduciary liability insurance policies (collectively, the “D&O Insurance”), in each case for a claims reporting or discovery period of up to the Seller under such instruments and its intention to honor such obligations.
six (b6) For ten years from and after the Closing Date, Effective Time with respect to any claim related to any period of time at or prior to the Company shall maintain Effective Time from Sunward’s current D&O Insurance carriers or one or more insurance carriers with the same or better credit rating as Sunward’s current D&O Insurance carriers with respect to directors’ and officers’ insurance policies in effect an amount and scope at least as favorable as the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing DateD&O Insurance; provided, however, that in no event shall Sunward pay aggregate premiums for such “tail” insurance policies in excess of 250% of the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of aggregate annual premium for directors’ and officers’ liability insurance policies currently maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (Sunward; provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, howeverfurther, that if the parties aggregate premiums payable for such “tail” insurance policies exceed such amount, Sunward shall obtain “tail” insurance policies with the greatest coverage available, with respect to matters occurring prior to the Effective Time, for a cost not exceeding such amount.
(b) NovaCopper agrees that it shall cause Sunward to honour all rights to indemnification or exculpation now existing in any action shall include both favour of present and former officers and directors of Sunward and its subsidiaries to the Company and extent that they are disclosed in Schedule 7.6(b) of the SellerSunward Disclosure Letter, and acknowledges that such rights, to the Seller shall have reasonably concluded extent that counsel selected by the Company has a conflict of interest because they are disclosed in Schedule 7.6(b) of the availability of different or additional defenses to Sunward Disclosure Letter, shall survive the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense completion of the Company; Plan of Arrangement and provided furthershall continue in full force and effect for a period of not less than six (6) years from the Effective Date.
(c) The provisions of this Section 7.6 are intended for the benefit of, howeverand shall be enforceable by, each insured or indemnified person, his or her heirs and his or her legal representatives and, for such purpose, Sunward hereby confirms that it is acting as agent and trustee on their behalf. Furthermore, this Section 7.6 shall survive the Company shall forfeit the right to control the defense or settlement termination of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature this Agreement as a result of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense occurrence of the Company, in the compromise of, or defense against, such Claim Effective Date for a period of six (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy6) years.
Appears in 1 contract
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Prior to the Seller under Effective Time, Newstrike shall obtain and fully pay the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as premiums for a director non- cancellable extension of the Company. The Company hereby confirms its obligations directors’ and officers’ liability coverage of Newstrike’s existing directors’ and officers’ insurance policies and Newstrike’s existing fiduciary liability insurance policies (collectively, the “D&O Insurance”), in each case for a claims reporting or discovery period of up to the Seller under such instruments and its intention to honor such obligations.
six (b6) For ten years from and after the Closing Date, Effective Time with respect to any claim related to any period of time at or prior to the Company shall maintain Effective Time from Newstrike’s current D&O Insurance carriers or one or more insurance carriers with the same or better credit rating as Newstrike’s current D&O Insurance carriers with respect to directors’ and officers’ insurance policies in effect an amount and scope at least as favorable as the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing DateD&O Insurance; provided, however, that in no event shall Newstrike pay aggregate premiums for such “tail” insurance policies in excess of 250% of the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of aggregate annual premium for directors’ and officers’ liability insurance policies currently maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (Newstrike; provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, howeverfurther, that if the parties aggregate premiums payable for such “tail”insurance policies exceed such amount, Newstrike shall obtain “tail” insurance policies with the greatest coverage available, with respect to matters occurring prior to the Effective Time, for a cost not exceeding such amount.
(b) Timmins agrees that it shall cause Newstrike to honour all rights to indemnification or exculpation now existing in any action shall include both favour of present and former officers and directors of Newstrike and its subsidiaries to the Company and extent that they are disclosed in Schedule 7.6(b) of the SellerNewstrike Disclosure Letter, and acknowledges that such rights, to the Seller shall have reasonably concluded extent that counsel selected by the Company has a conflict of interest because they are disclosed in Schedule 7.6(b) of the availability of different or additional defenses to Newstrike Disclosure Letter, shall survive the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense completion of the Company; Plan of Arrangement and provided furthershall continue in full force and effect for a period of not less than six (6) years from the Effective Date.
(c) The provisions of this Section 7.6 are intended for the benefit of, howeverand shall be enforceable by, each insured or indemnified person, his or her heirs and his or her legal representatives and, for such purpose, Newstrike hereby confirms that it is acting as agent and trustee on their behalf. Furthermore, this Section 7.6 shall survive the Company shall forfeit the right to control the defense or settlement termination of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature this Agreement as a result of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense occurrence of the Company, in the compromise of, or defense against, such Claim Effective Date for a period of six (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy6) years.
Appears in 1 contract
Insurance and Indemnification. (a1) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Effective Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” or “run-off” policies of directors’ and officers’ liability insurance providing protection no less favorable in the aggregate to the protection provided by the policies maintained by the Company at not less than current levels with which are in effect immediately prior to the Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the SellerEffective Date for each person covered by the Company’s resignation directors’ and officers’ liability insurance as a director in effect as of the date hereof, and Purchaser shall or shall cause the Company to maintain such tail policies in effect without any reduction in scope or coverage for six (6) years from the Effective Date; provided that Purchaser shall not be responsible for paying any premiums in respect of such coverage prior to the Effective Time.
(2) Purchaser shall and shall cause the Company (and any successors) to honor all rights to indemnification, expense advancement and exculpation now existing in favor of present and former directors and officers of the Company or any of its Subsidiaries and that come to exist in favor of any person who becomes a director or officer of the Company or any of its Subsidiaries prior to the Effective Time (provided collectively, the “Indemnified Persons”), and Purchaser shall cause the Company to ensure that the Constitutional Documents of the Company may substitute therefor policies of at least and its Subsidiaries (or any successor thereto) contain substantially the same coverage provisions with respect to indemnification, expense advancement and amounts containing terms and conditions which are, exculpation set forth in the aggregate, no less advantageous Constitutional Documents of the Company and its Subsidiaries in effect immediately prior to the insuredEffective Date, so long as which provisions shall not, except to the substitute insurer extent required by Law, be amended, repealed or carrier has otherwise modified for a Best’s rating period of six (6) years from the Effective Date in any manner that is no lower than AX)would adversely affect the rights thereunder of individuals who at any time on or before the Effective Date, were directors or officers of the Company.
(d3) The Without limiting the generality of the provisions of 4.7(2), during the period commencing at the Effective Time and ending on the sixth (6th) anniversary of the Effective Time, the Company and its Subsidiaries as of the Effective Time shall indemnify(and Purchaser shall cause the Company and its Subsidiaries as of the Effective Time to), to the extent permitted by applicable Law, indemnify and hold harmless each Indemnified Person from and defend the Seller against any costs, fees and all claims, losses, liabilities, damages, judgments, fines expenses (including reasonable attorneys’ fees and investigation expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, proceeding, investigation or inquiry, whether civil, criminal, administrative or investigative, to the extent such claim, proceeding, investigation or inquiry arises directly or indirectly out of or pertains directly or indirectly to (i) any action or omission or alleged action or omission in such Indemnified Person’s capacity as a director, officer, employee or agent of the Company or any of its Subsidiaries or other Affiliates which occurred prior to or at the Effective Time or (ii) any of the transactions contemplated by this Agreement. In addition, during the period commencing at the Effective Time and ending on the sixth (6th) anniversary of the Effective Time, the Company and its Subsidiaries as of the Effective Time shall (and Purchaser shall cause the Company and its Subsidiaries as of the Effective Time to), to the extent permitted by applicable Law, advance, prior to the final disposition of any claim, proceeding, investigation or inquiry for which indemnification may be sought under this Agreement, promptly following request by an Indemnified Person therefor, all costs, fees and expenses (including reasonable attorneys’ fees and investigation expenses) incurred by Seller relating to or arising out of such Indemnified Person in connection with any such claim, demandproceeding, asserted liabilityinvestigation or inquiry upon receipt of an undertaking by such Indemnified Person to repay such advances if it is ultimately decided in a final, suit or proceeding non-appealable judgment by a court of any kind (any, a “Claim”) with respect competent jurisdiction that such Indemnified Person is not entitled to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Optionsindemnification hereunder. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim ifIf, at any time after assuming prior to the defense sixth (6th) anniversary of the Effective Time, any Indemnified Person delivers to Purchaser a written notice asserting in good faith a claim for indemnification or settlement thereofadvancement of expenses under this Section 4.7(3), then the claim asserted in such notice shall survive the sixth (6th) anniversary of the Effective Time until such time as such claim is fully and finally resolved. Notwithstanding anything to the contrary set forth in this Section 4.7(3) or elsewhere in this Agreement, neither the Company nor any of its Affiliates (including, following the Effective Time, Purchaser) shall settle or otherwise compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, proceeding, investigation or inquiry for which indemnification may be sought by an Indemnified Person under this Agreement unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such claim, proceeding, investigation or inquiry.
(4) The provisions of this Section 4.7 are intended for the benefit of, and shall be enforceable by each insured or indemnified person, his or her heirs, executors, administrators and other legal representatives. Purchaser acknowledges to such insured or indemnified persons their direct rights against it under this Section 4.7, which is intended for the benefit of, and shall be enforceable by, each such person, his or her heirs, executors, administrators and other legal representatives, and the Company agrees to enforce such provisions on their behalf.
(5) If Purchaser, the Company or any of its Subsidiaries or any of their respective 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 of substantially all of its properties and assets to any Person, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoingPurchaser shall ensure that any such successors or assigns (including, if the Company elects to compromise or defend such Claimas applicable, it shall within 30 days (or sooner, if the nature any acquirer of substantially all of the Claim so requires) notify the Seller of its intent to do so, properties and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense assets of the Company or its Subsidiaries) shall assume all of the obligations set forth in this Section 4.7.
(it being understood 6) Purchaser will, and will cause the Company may participateto, at its own expense, in honor and abide by and perform the defense terms of such Claim). If all indemnification agreements of the Company chooses to defend any Claimand its Subsidiaries with their respective directors, officers and employees in effect on the Seller shall, subject to receipt Effective Date.
(7) The provisions of this Section 4.7 shall survive completion of the Acquisition and continue in full force and effect for a reasonable confidentiality agreement, make available to period not less than six (6) years following the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxyEffective Date.
Appears in 1 contract
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing DateEffective Time, the Company shall maintain in effect obtain and pay for a directors’ and officers’ liability insurance “tail” policy for the current provisions regarding limitation Company (the “D&O Policy”) with a term of liability six years following the date of the Effective Time and providing for coverage and amounts, and containing terms and conditions, which are no less favourable to the directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as officers of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect than the current policies of directors’ and officers’ and liability insurance maintained by the Company; provided, however, that in no event will the Company pay in excess of 250% of the annual premium currently paid by the Company for such coverage for the purchase of such D&O Policy, and if the cost for such coverage is in excess of such amount, the Company shall only maintain such coverage as is available for such amount. The Offeror shall cause the Company to maintain such D&O Policy in accordance with the provisions of this Section 8.7.
(b) The Offeror agrees that all rights to indemnification or exculpation existing in favour of the directors or officers of the Company or any subsidiary of the Company as provided in the Company’s articles or by-laws as at the date of the Confidentiality Agreement shall survive the transactions contemplated hereby and shall continue in full force and effect for a period of not less than current levels six years from the Effective Time.
(c) In the event the Company or any of its successors or assigns (i) consolidates with respect or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to acts or omissions occurring on or prior to the Seller’s resignation as a director any person, then, and in such case, proper provision shall be made so that such successors and assigns of the Company (provided that or, at the Company may substitute therefor policies of at least Offeror’s option, the same coverage and amounts containing terms and conditions which areOfferor, shall assume the obligations set forth in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)this Section 8.7.
(d) The Company shall indemnify, hold harmless and defend not amend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase constating documents of the Shares and Company after the OptionsEffective Time if such action would adversely affect the rights of individuals who, on or prior to the Effective Time, were entitled to advances, indemnification or exculpation thereunder for actions or omissions by such individuals at any time at or prior to the Effective Time. This indemnification obligation is separate and apart from the obligations The individuals referred to in the above paragraphs of this Section 15 and preceding sentence shall apply to include any and all such Claims whether or not arising out of, based upon or related individuals who served at any time prior to the Sellerdate hereof as directors or officers of any subsidiary at the Company’s service as request, it being acknowledged by the parties hereto that each director or officer of a director subsidiary is or was doing so at such request of the Company. .
(e) The Company may elect Offeror agrees that all rights to compromise indemnification or defend, at its own expense exculpation now existing in favour of present and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy former officers and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller directors of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and its subsidiaries, including, without limitation, all provisions relating to advances for the Sellerfunding of costs and expenses in connection with indemnification arrangements, and shall survive the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because completion of the availability transactions contemplated hereunder and shall continue in full force and effect for a period of different six years from the Effective Time. The Offeror agrees that all determinations made with respect to such rights to indemnification or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller exculpation shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claimdetermined upon advice from independent counsel, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company advice will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxyreasonably considered and acted upon.
Appears in 1 contract
Samples: Acquisition Agreement (Actuate Corp)
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from From and after the Closing Date, the Surviving Corporation shall fulfill and honor in all respects, to the extent permitted or required by applicable law, the existing obligations of the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification ofpursuant to any indemnification, exculpation and advancement of expenses toprovisions in favor of the current or former directors, directors officers, employees or agents of the Company or any of its subsidiaries or any other person who, at the request of the Company or any of its subsidiaries, served as contained a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust pension or other employee benefit plan or enterprise (the “Indemnified Parties”) under the organization documents of the Company or its subsidiary or any agreement between an Indemnified Party and the Company or any of its subsidiaries, in its Certificate of Incorporation and Bylaws each case as in effect as of the Closing Date; provideddate of the Merger Agreement or as amended prior to the Effective Time with the consent of Parent. The certificate of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification, however, exculpation and advancement of expenses that are at least as favorable to the Indemnified Parties as those contained in the organizational documents of the Company may amend in effect on the date of the Merger Agreement, and such provisions so long as 42 Table of Contents shall not be amended, repealed or otherwise modified for a period of six (6) years from the Closing Date in any such amendment does not materially and manner that would adversely affect the Seller.
rights of the Indemnified Parties. As of the Acceptance Date and for a period six (c6) For ten years from and after the Closing Datethereafter, the Company shall maintain Parent will either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on provide substitute policies or prior to the Seller’s resignation as purchase a director “tail policy,” in either case of the Company (provided that the Company may substitute therefor policies of at least substantially the same coverage and amounts and containing terms and conditions which are, that are not materially less advantageous in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower aggregate than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) such policy with respect to this Agreement matters arising on or before the Irrevocable Proxy or Closing Date. However, Surviving Corporation will not be required to pay with respect to such insurance policies in respect of any one policy year annual premiums in excess of 275% of the transactions contemplated hereby and thereby, including without limitation current annual premium paid by the Company’s repurchase of the Shares and the Options, but in such case must purchase as much coverage as reasonably practicable for such amount. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related Prior to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the twoClosing Date, the Company is solely obligated shall purchase, at Parent’s expense, a supplemental extended reporting period with respect to satisfy the errors and discharge the Claim, (ii) omissions insurance currently maintained by the Company makes reasonably adequate provision and its respective subsidiaries that will be effective from the Closing Date for a period of two (2) years; provided, that Parent shall not be required to satisfy make annual premium payments for any such insurance policy to the Seller extent such premiums exceed 200% of the Company’s ability current annual premium paid by the Company for the errors and omissions insurance the Company currently maintains. In addition, prior to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectivelyClosing Date, the “Litigation Conditions”)Company shall purchase, at Parent’s expense a supplemental extended reporting period with respect to the special risk insurance policy currently maintained by the Company and its respective subsidiaries that will be effective from the Closing Date for a period of two (2) years; provided, however, that if Parent shall not be required to make annual premium payments for any such insurance policy to the parties in any action shall include both extent such premiums exceed 200% of the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected current annual premium paid by the Company has a conflict of interest because of for the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that special risk insurance the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxycurrently maintains.
Appears in 1 contract
Samples: Offer to Purchase (Alcatel Lucent)
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Buyer will provide each individual who served as a director or officer of the Target at any time prior to the Seller Effective Time with liability insurance providing coverage for events occurring at or prior to the Effective Time for a period of six (6) years after the Effective Time no less favorable in coverage and amount that the insurance in effect immediately prior to the Effective Time. The charter and bylaws of the Surviving Corporation shall contain the provisions with respect to indemnification set forth in the Certificate of Incorporation and Bylaws of the Target on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of Persons who at any time prior to the Effective Time were prospective indemnitees under the Company’s Certificate of Incorporation or Bylaws of the Target in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by law. From and after the Effective Time, the Surviving Corporation shall indemnify, defend and hold harmless the present and former officers, directors, agents and employees of the Target and its Subsidiaries (collectively, the "Indemnified Parties") against all losses, expenses, claims, damages, liabilities or amounts that certain Indemnity Agreementare paid in settlement of, dated as with the approval of January 1, 2000, by and between the Company Buyer and the SellerSurviving Corporation (which approval shall not be unreasonably withheld), whereby or otherwise in connection with, any claim, action, suit, proceeding or investigation, based in whole or in part on the Company has agreed to indemnify the Seller in his capacity as a director fact that such Person is or was such an officer, director, agent or employee of the Company. The Company hereby confirms its obligations Target or any Subsidiary and arising out of actions or omissions occurring at or prior to the Seller Effective Time (including the transactions contemplated by this Agreement), in each case to the fullest extent permitted under such instruments and its intention to honor such obligations.
the laws of the State of Delaware (b) For ten years and, from and after the Closing DateEffective Time, the Company shall maintain pay expenses in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as advance of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement final disposition of any such claim if, at any time after assuming the defense action or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject proceeding to each Indemnified Party to the foregoing, if fullest extent permitted by the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature laws of the Claim so requires) notify the Seller State of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expenseDelaware). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.
Appears in 1 contract
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Xxxxxx will, or will cause Xxxxxx to, at Xxxxxx' option, either (i) maintain in effect without any reduction in scope or coverage for not less than six years from the Effective Date customary policies of directors' and officers' liability insurance providing protection comparable to the Seller under protection provided by the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, policies maintained by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller Xxxxxx in his capacity as a director favour of the Company. The Company hereby confirms directors and officers of Xxxxxx and each of its obligations subsidiaries which are in effect immediately prior to the Seller under such instruments Effective Date and its intention providing protection in respect of claims arising from facts or events which occurred prior to honor such obligationsthe Effective Time or (ii) purchase as an extension of Xxxxxx'x current insurance policies, prepaid non cancellable run-off directors' and officers' liability insurance providing coverage comparable to that contained in Xxxxxx'x existing policy for six years from the Effective Time with respect to claims arising from or related to facts or events that occurred at or prior to the Effective Time.
(b) For ten Xxxxxx agrees that all rights to indemnification or exculpation (including rights under Xxxxxx'x corporate by-laws) now existing in favour of any present or former officer or director of Xxxxxx or any of its subsidiaries shall survive the completion of the Arrangement and shall continue in full force and effect for a period of not less than six years from the Effective Date and after the Closing DateXxxxxx hereby assumes, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as effective upon completion of the Closing Date; providedArrangement, however, that all such liability with respect to matters arising prior to the Company may amend such provisions so long as any such amendment does not materially and adversely affect the SellerEffective Time.
(c) For ten years from In the event that Xxxxxx or any of its successors or assigns (i) consolidates with or merges into any other Person and after shall not be the Closing Datecontinuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that such successors and assigns of Xxxxxx or, at Xxxxxx' option, Xxxxxx shall assume the Company shall maintain obligations set forth in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with this SECTION 7.5 without releasing in any respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)Xxxxxx' obligations hereunder.
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs provisions of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if SECTION 7.5 are (i) for the Company expressly agrees in writing to the Seller thatbenefit of, as between the twoand shall be enforceable by, the Company is solely obligated to satisfy each indemnified Party, his or her heirs, executors, administrators and discharge the Claim, other legal representatives and (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claimare in addition to, and (iiinot in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise, and the rights granted under this SUBSECTION 7.5(d) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); shall be held by Xxxxxx in trust for such persons provided, however, that if the parties no approval of any beneficiary of such trust shall be required in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict connection with an amendment or variation of interest because of the availability of different or additional defenses this section prior to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxyEffective Date.
Appears in 1 contract
Insurance and Indemnification. (a1) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Effective Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” policies of directors’ and officers’ liability insurance providing protection no less favourable in the aggregate to the protection provided by the policies maintained by the Company at not less than current levels with and its Subsidiaries which are in effect immediately prior to the Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the Seller’s resignation as a director of Effective Date and the Purchaser shall, or shall cause the Company and its Subsidiaries to maintain such tail policies in effect without any reduction in scope or coverage for six (6) years from the Effective Date; provided that the Company may substitute therefor policies Purchaser shall not be required to pay any amounts in respect of at least the same such coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous prior to the insured, so long as Effective Time and provided further that the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company cost of such policies shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller exceed 300% of the Company’s ability current annual aggregate premium for policies currently maintained by the Company or its Subsidiaries.
(2) The Purchaser shall cause the Company to, honour all rights to satisfy indemnification or exculpation now existing in favour of present and discharge the claimformer employees, officers and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both directors of the Company and its Subsidiaries to the Sellerextent that they are (i) included in the Constating Documents of the Company or any of its Subsidiaries, or (ii) disclosed in Section 3.1(20)(a) of the Company Disclosure Letter, and acknowledges that such rights under both (i) and (ii) shall survive the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because completion of the availability Plan of different or additional defenses to Arrangement and shall continue in full force and effect in accordance with their terms for a period of not less than six (6) years from the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days Effective Date.
(or sooner, if the nature of the Claim so requires3) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller any of its election as herein providedSubsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not a continuing or surviving corporation or entity of such consolidation or merger, or fails (ii) transfers all or substantially all of its properties and assets to satisfy the Litigation Conditionsany Person, the Seller may payPurchaser shall ensure that any such successor or assign (including, compromise or defend such Claim at as applicable, any acquirer of substantially all of the expense properties and assets of the Company (it being understood or its Subsidiaries) assumes all of the Company may participate, at its own expense, obligations set forth in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxySection 4.10.
Appears in 1 contract
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director As of the Company. The Company hereby confirms its obligations Effective Time and for six years thereafter (or such later time as to which the Seller under such instruments statute of limitations shall have been extended by action of the Surviving Corporation), Group Ltd. shall, and shall cause the Surviving Corporation to, indemnify, defend and hold harmless the present and former officers, directors, employees and agents of Audits and its intention to honor such obligations.
Subsidiaries (beach an "Indemnified Party") For ten years from and after the Closing Dateagainst all losses, the Company shall maintain in effect the current provisions regarding limitation claims, damages or liabilities arising out of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts actions or omissions occurring on or prior to the Seller’s resignation as a director of the Company Effective Time (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which areincluding, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or without limitation the transactions contemplated hereby by this Agreement) to the full extent permitted or required under Delaware law and therebyby Article Twelfth of the Surviving Certificate of Incorporation and Article VII of the Surviving By-laws (which Article Twelfth and Article VII shall not be amended to adversely affect such indemnity for the six year period), including without limitation the Company’s repurchase provisions relating to advances of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate expenses incurred in the defense of such any action on his behalfor suit, at provided that any determination required to be made with respect to whether an Indemnified Party's conduct complies with the expense standards set forth under Delaware law and the Surviving Certificate of Incorporation and the Surviving By-laws shall be made by independent counsel mutually selected by the Indemnified Party and the Surviving Corporation. At the Effective Time Group Ltd. shall cause the Surviving Corporation to purchase a non-cancellable extension of the Company; existing directors' and provided further, however, that officers' liability insurance of Audits covering parties who are currently covered by such policy for a period of five years after the Company shall forfeit the right to control the defense Effective Time in respect of acts or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject omissions occurring prior to the foregoing, if the Company elects Effective Time on terms with respect to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, coverage and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense amount no less favorable than those of such Claim). If policy in effect on the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxydate hereof.
Appears in 1 contract
Insurance and Indemnification. (a1) The Company hereby acknowledges its indemnification obligations Prior to the Seller under Effective Time, the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity AgreementCorporation shall and, dated if the Corporation is unable after using commercially reasonable efforts, the Purchaser Parties shall cause the Corporation to, as of January 1the Effective Time, 2000, by obtain and between fully pay the Company and premium for the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director extension of the Company. The Company hereby confirms its obligations to directors’ and officers’ liability coverage of the Seller under such instruments Corporation’s and its intention to honor such obligations.
(b) For ten Subsidiaries’ existing directors’ and officers’ insurance policies for a claims reporting or run-off and extended reporting period and claims reporting period of at least six years from and after the Closing Date, Effective Time with respect to any claim related to any period of time at or prior to the Company shall maintain in effect Effective Time from the Corporation’s current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of insurance carriers or an insurance carrier with the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of same or better credit rating with respect to directors’ and officers’ liability insurance maintained by the Company at not less than current levels (D&O Insurance), and with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director terms, conditions, retentions and limits of the Company (provided liability that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, are no less advantageous to the insuredpresent and former directors and officers of the Corporation and its Subsidiaries than the coverage provided under the Corporation’s and its Subsidiaries’ existing policies. If the Corporation for any reason fails, so long after having used commercially reasonable efforts, to obtain such run off insurance policies as of the substitute insurer Effective Time, the Purchaser Parties shall, or carrier has shall cause the Corporation and its Subsidiaries to, maintain in effect for a Bestperiod of at least six years from and after the Effective Time the D&O Insurance in place as of the date hereof with terms, conditions, retentions and limits of liability that are no less advantageous to the present and former directors and officers of the Corporation and its Subsidiaries than the coverage provided under the Corporation’s rating and its Subsidiaries’ existing policies as of the date hereof, or the Corporation shall purchase comparable D&O Insurance for such six-year period with terms, conditions, retentions and limits of liability that is no lower than AX)are at least as favourable to the present and former directors and officers of the Corporation and its Subsidiaries as provided in Corporation’s existing policies as of the date hereof.
(d2) The Company From and after the Effective Date, the Purchaser Parties shall indemnify, hold harmless and defend cause the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement Corporation or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase applicable Subsidiary of the Shares Corporation to honour all rights to indemnification or exculpation now existing in favour of present and former employees, officers and directors of the Options. This indemnification obligation is separate Corporation and apart its Subsidiaries to the extent that they are contained in their Constating Documents or disclosed in the Corporation Disclosure Letter and acknowledges that such rights, to the extent that they are contained in their Constating Documents or disclosed in the Corporation Disclosure Letter, shall survive the completion of the Plan of Arrangement and shall continue in full force and effect in accordance with their terms for a period of not less than six years from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director Effective Date.
(3) If either of the Company. The Company may elect to compromise Purchaser Parties, the Corporation or defend, at any of its own expense and by its own counsel, Subsidiaries or any Claim if of their respective successors or assigns following the Effective Time (i) the Company expressly agrees in writing to the Seller thatconsolidates or amalgamates with or merges or liquidates into any other Person and is not a continuing or surviving corporation or entity of such consolidation, as between the twoamalgamation, the Company is solely obligated to satisfy and discharge the Claimmerger or liquidation, or (ii) the Company makes reasonably adequate provision transfers all or substantially all of its properties and assets to satisfy the Seller any Person, proper arrangements shall be made so as to ensure that any such successor or assign (including, as applicable, any acquirer of substantially all of the Company’s ability properties and assets of the Purchaser Parties, the Corporation or its Subsidiaries) assumes all of the obligations set forth in this Section 4.9 and acknowledges that such rights shall survive the Effective Time and shall continue in full force and effect in accordance with their terms for a period of not less than six years from the Effective Date.
(4) This Section 4.9 shall survive the consummation of the Arrangement and is intended to satisfy and discharge be for the claimbenefit of, and (iii) the Claim involves solely monetary damages (collectivelyshall be enforceable by, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company present and the Seller, former directors and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because officers of the availability of different or additional defenses to Corporation and its Subsidiaries and their respective heirs, executors, administrators and personal representatives (the SellerIndemnified Persons) and shall be binding on the Purchaser Parties, the Seller shall have Corporation and their respective successors and assigns, and, for such purpose, the right to select separate counsel to participate in the defense of such action Corporation hereby confirms that it is acting as agent on his behalf, at the expense behalf of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxyIndemnified Persons.
Appears in 1 contract
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation Purchaser will, or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between will cause the Company and the Sellerits Subsidiaries to, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained without any reduction in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten scope or coverage for six years from and after the Closing Date, the Company shall maintain in effect the current Effective Date customary policies of directors’ and officers’ liability insurance providing protection no less favourable than the protection provided by the policies maintained by the Company at not less than current levels with and its Subsidiaries which are in effect immediately prior to the Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the Seller’s resignation as a director Effective Date. Alternatively, the Purchaser agrees that prior to the Effective Date, the Company may, at the election of the Company in its sole discretion (and provided that if the Company so elects, the Purchaser and the Company and its Subsidiaries shall not have the obligation referenced in the immediately preceding sentence), purchase customary “tail” policies of directors’ and officers’ liability insurance providing protection no less favourable in the aggregate to the protection provided by the policies maintained by the Company and its Subsidiaries which are in effect immediately prior to the Effective Date and providing protection in respect of claims arising from facts or events which occurred on or prior to the Effective Date and the Purchaser and its successors in interest shall, or shall cause the Company and its successors in interest and its or their Subsidiaries to maintain such tail policies in effect without any reduction in scope or coverage for seven years from the Effective Date; provided that the Company may substitute therefor policies Purchaser shall not be required to pay any amounts in respect of at least the same such coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous prior to the insured, so long as Effective Time. From and after the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the twoEffective Time, the Company is solely obligated or the Purchaser, as applicable, agrees not to satisfy take any action to terminate such directors’ and discharge officers’ liability insurance or adversely affect the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller rights of the Company’s ability to satisfy present and discharge the claim, former directors and officers thereunder.
(iiib) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action The Purchaser shall include both cause the Company and the Sellerits Subsidiaries to honour all rights to indemnification or exculpation now existing in favour of present and former employees, officers and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict directors of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject its Subsidiaries, to the foregoing, if extent that they are (i) included in the Constating Documents of the Company elects to compromise or defend such Claimany of its Subsidiaries, it shall within 30 days or (or sooner, if the nature ii) disclosed in Schedule 4.9(b) of the Claim so requires) notify the Seller of its intent to do soCompany Disclosure Letter, and acknowledges that such rights shall survive the Seller shall reasonably cooperate, at the expense completion of the Company, Plan of Arrangement and shall continue in full force and effect in accordance with their terms for a period of not less than six years from the compromise of, or defense against, such Claim Effective Date.
(it being understood the Seller shall be entitled to participate in any such defense at its own expense). c) If the Company elects not to compromise or defend the Claim, fails to notify the Seller any of its election as herein providedSubsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not a continuing or surviving corporation or entity of such consolidation or merger, or fails (ii) transfers all or substantially all of its properties and assets to satisfy the Litigation Conditionsany Person, the Seller may payPurchaser shall ensure that any such successor or assign (including, compromise or defend such Claim at as applicable, any acquirer of substantially all of the expense properties and assets of the Company (it being understood or its Subsidiaries) assumes all of the obligations of the Company may participate, at and its own expense, Subsidiaries set forth in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxySection 4.9.
Appears in 1 contract
Insurance and Indemnification. (a1) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Effective Date, the Company Corporation shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” policies of directors’ and officers’ liability insurance providing protection no less favourable in the aggregate to the protection provided by the policies maintained by the Company at not less than current levels with Corporation and its Subsidiaries which are in effect immediately prior to the Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the Seller’s resignation as a director of Effective Date, and the Company Purchaser shall, or shall cause the Corporation and its Subsidiaries to maintain such tail policies in effect without any reduction in scope or coverage for six (6) years from the Effective Date; provided that the Company may substitute therefor policies Purchaser shall not be required to pay any amounts in respect of at least the same such coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous prior to the insured, so long Effective Time; and provided further that the cost of such policies shall not exceed 300% of the aggregate premium for policies currently maintained by the Corporation and its Subsidiaries as set forth in Section 4.9 of the substitute insurer or carrier has a Best’s rating that is no lower than AX)Corporation Disclosure Letter.
(d2) The Company Purchaser shall, and shall indemnifycause the Corporation and its Subsidiaries to, hold harmless (a) honour all rights to indemnification or exculpation in favour of present and defend the Seller against any former Corporation Employees, officers and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase directors of the Shares Corporation and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related its Subsidiaries to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if extent that they are (i) the Company expressly agrees now existing and contained in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, their Constating Documents or (ii) disclosed in the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claimCorporation Disclosure Letter or in any filed Corporation SEC Documents, and (iiib) acknowledges that such rights, to the Claim involves solely monetary damages extent that they are contained in their Constating Documents or disclosed in the Corporation Disclosure Letter or in any filed Corporation SEC Documents, shall not be amended or rescinded in a manner adverse to the applicable Corporation Employee, officer or director and shall survive the completion of the Plan of Arrangement and shall continue in full force and effect in accordance with their terms for a period of not less than six (collectively6) years from the Effective Date.
(3) If Purchaser, the “Litigation Conditions”); providedCorporation or any of its Subsidiaries, howeveror any of their respective successors or assigns (a) consolidates or amalgamates with or merges or liquidates into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation, that if the parties in amalgamation, merger or liquidation or (b) transfers or conveys all or substantially all of its properties and assets to any action shall include both the Company and the SellerPerson, then, and in each such case, proper provision shall be made so that any such successor and assign shall assume the Seller obligations set forth in this Section 4.9.
(4) This Section 4.9 shall have reasonably concluded that counsel selected by survive the Company has a conflict of interest because consummation of the availability of different or additional defenses Arrangement and is intended to be for the Sellerbenefit of, and shall be enforceable by, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalfpresent and former Corporation Employees, at the expense directors and officers of the Company; Corporation and provided furtherits Subsidiaries and their respective heirs, howeverexecutors, that administrators and personal representatives (the Company Indemnified Persons) and shall forfeit be binding on the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereofPurchaser, the Company Corporation, its Subsidiaries and their respective successors and assigns, and, for such purpose, the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, Corporation hereby confirms that it shall within 30 days (or sooner, if the nature is acting as agent on behalf of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxyIndemnified Persons.
Appears in 1 contract
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws Effective Time, following a review and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director formal written acceptance of the Company. The Company hereby confirms its obligations to the Seller under such instruments terms and its intention to honor such obligations.
(b) For ten years from and after the Closing Dateconditions by Stryker, the Company Novadaq shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” policies of directors’ and officers’ liability, products and completed operations liability and employment practices liability insurance from a reputable and financially sound insurance carrier and containing terms and conditions no less favourable in the aggregate to the protection provided by the policies maintained by Novadaq and its Subsidiaries which are in effect immediately prior to the Company at not less than current levels with Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the SellerEffective Time and Novadaq will, and will cause its Subsidiaries to, maintain such tail policies in effect without any reduction in scope or coverage for six years from the Effective Time; provided, that Novadaq and its Subsidiaries shall not be required to pay any amounts in respect of such coverage prior to the Effective Time and provided further that the cost of such policies shall not exceed 250% of Novadaq’s resignation as a director current annual aggregate premium for policies currently maintained by Novadaq or its Subsidiaries.
(b) Novadaq will, and will cause its Subsidiaries to, honour all rights to indemnification or exculpation now existing in favour of present and former employees, officers and directors of Novadaq and its Subsidiaries under Law and, to the extent that they are disclosed in the Novadaq Disclosure Letter, under the articles or other constating documents of Novadaq and/or its Subsidiaries or under any agreement or contract of any indemnified person with Novadaq or with any of its Subsidiaries, and acknowledges that such rights shall survive the completion of the Company (provided Plan of Arrangement, and, to the extent within the control of Novadaq, Novadaq shall ensure that the Company may substitute therefor policies same shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of at least any such indemnified person and shall continue in full force and effect in accordance with their terms for a period of not less than six years from the same coverage Effective Date.
(c) From and amounts containing terms following the Effective Time, Stryker will cause Novadaq to comply with its obligations under Section 5.7(a) and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AXSection 5.7(b).
(d) The Company If Novadaq or Stryker or any of their successors or assigns shall indemnify(i) amalgamate, hold harmless consolidate with or merge or wind-up into any other person and defend shall not be the Seller against continuing or surviving corporation or entity; or (ii) transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns and transferees of Novadaq or Stryker, as the case may be, shall assume all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to of Novadaq or Stryker, as applicable, set forth in the above paragraphs this Section 5.7.
(e) The provisions of this Section 15 5.7 are intended for the benefit of, and shall apply be enforceable by, each insured or indemnified Person, his or her heirs and his or her legal representatives and, for such purpose, Novadaq hereby confirms that it is acting as trustee on their behalf, and agrees to any and all such Claims whether or not arising out ofenforce the provisions of this Section 5.7 on their behalf. Furthermore, based upon or related to this Section 5.7 shall survive the Seller’s service termination of this Agreement as a director result of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller occurrence of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has Effective Date for a conflict period of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxysix years.
Appears in 1 contract
Insurance and Indemnification. (a) The Company hereby acknowledges its Bylaws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification obligations to than are set forth in the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The , which provisions shall not be amended, repealed or otherwise modified for a period of at least six years from the Effective Time in any manner that would affect adversely the rights of individuals, who were directors, officers, employees or agents of the Company hereby confirms its obligations at or prior to the Seller under Effective Time, unless such instruments and its intention to honor such obligationsmodification shall be required by Law.
(b) For ten years from Prior to the fifth Business Day preceding the Effective Time, Parent shall have the right, but not the obligation, to purchase a six-year prepaid "tail policy" on terms and after conditions (in both amount and scope) providing substantially equivalent benefits as the Closing Datecurrent policies of officers' and directors' liability insurance covering acts or omissions occurring at or prior to the Effective Time ("D&O Insurance") maintained by the Company, covering without limitation the transactions contemplated hereby (the "Tail Policy"). If Parent has not purchased the Tail Policy by such fifth Business Day preceding the Effective Time, the Company shall maintain in effect have the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of right to purchase the Tail Policy prior to the Closing Dateon terms reasonably acceptable to Parent. In the absence of any such Tail Policy, Parent and the Surviving Corporation shall maintain the Company's existing D&O Insurance for a period of not less than six years after the Effective Time; provided, however, that Parent may substitute therefor policies of substantially equivalent coverage and amounts containing terms no less favorable to such former directors or officers; provided that Parent and the Surviving Corporation shall use their respective reasonable best efforts to ensure that any substitution or replacement of existing policies shall not result in any gaps or lapses of coverage with respect to facts, events, acts or omissions occurring at or prior to the Effective Time; provided, further, that if the existing D&O Insurance expires or is terminated or cancelled during such period, then Parent or the Surviving Corporation shall obtain substantially similar D&O Insurance; provided further, however, that in no event shall Parent or Merger Sub be required to pay annual premiums for insurance under this Section 6.5(b) in excess of 150% of the current annual premiums paid by the Company may amend for such provisions so long as any such amendment does not materially and adversely affect the Sellerinsurance.
(c) For ten years from and Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Closing DateEffective Time) is made against any individual who is now, or who has been at any time prior to the Company shall maintain in effect date hereof, or who becomes prior to the current policies Effective Time, a director, officer, employee or agent of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring Company, on or prior to the Seller’s resignation as a director sixth anniversary of the Company (provided that Effective Time, the Company may substitute therefor policies provisions of at least this Section 6.5 shall continue in effect until the same coverage and amounts containing terms and conditions which arefinal disposition of such claim, in the aggregateaction, no less advantageous to the insuredsuit, so long as the substitute insurer proceeding or carrier has a Best’s rating that is no lower than AX)investigation.
(d) The Company covenants contained in this Section 6.5 are intended to be for the benefit of, and shall indemnifybe enforceable by, hold harmless each of the indemnified parties and defend the Seller against their respective heirs and legal Representatives and shall not be deemed exclusive of any and other rights to which an indemnified party is entitled, whether pursuant to Law, contract or otherwise. Parent shall pay all claimsexpenses, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) ' fees, that may be incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations persons referred to in the above paragraphs of this Section 15 and shall apply to 6.5 in connection with their successful enforcement of their rights provided in this Section 6.5.
(e) In the event that the Parent or the Surviving Corporation or any and all such Claims whether of its successors or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if assigns (i) consolidates with or merges into any other person and shall not be the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the Company makes reasonably adequate provision to satisfy the Seller successors or assigns of the Company’s ability to satisfy and discharge Parent or the claimSurviving Corporation, and (iii) as the Claim involves solely monetary damages (collectivelycase may be, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses succeed to the Seller, the Seller shall have the right to select separate counsel to participate obligations set forth in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxySection 6.5.
Appears in 1 contract
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Fund and IRE agree that the Fund will be entitled to secure directors’ and trustees’ and officers’ liability insurance coverage for the Seller under current and former directors, trustees and officers of the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company Fund and the SellerFund Subsidiaries on a six year “trailing” or “run-off” basis. If the Fund elects not to subscribe to such a policy for any reason, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten then IRE agrees that, for not less than six years from and after the Closing DateEffective Time, the Company it shall maintain insurance coverage substantially equivalent to that in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect under the current policies of the directors’, trustees’ and officers’ liability insurance maintained by the Company at Fund or any of the Fund Subsidiaries which is no less advantageous, and with no gaps or lapses in coverage with respect to matters occurring prior to on or the Effective Time.
(b) IRE also undertakes in favour the current and former directors, trustees and officers of IRE and the IRE Subsidiaries to maintain, for not less than six years from the Effective Time, insurance coverage substantially equivalent to that in effect under the current levels policies of the directors’, trustees’ and officers’ liability insurance maintained by IRE or any of the IRE Subsidiaries which is no less advantageous, and with no gaps or lapses in coverage with respect to acts or omissions matters occurring prior to on or prior the Effective Time.
(c) The Fund and IRE agree that all rights to the Seller’s resignation as a director indemnification, exculpation or expenses reimbursement now existing in favour of present and former officers, trustees and directors of the Company (provided that Fund, the Company may substitute therefor policies Fund Subsidiaries, IRE and the IRE Subsidiaries shall survive the Arrangement and shall continue in full force and effect for a period of at least not less than six years from the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)Effective Date.
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs provisions of this Section 15 4.7 are intended for the benefit of all present and former directors, trustees and officers of the Fund, the Fund Subsidiaries, IRE and the IRE Subsidiaries, as and to the extent applicable in accordance with their terms, and shall apply be enforceable by each of such Persons and his or her heirs, executors administrators and other legal representatives and shall not be terminated, modified or waived in such a manner as to adversely affect any and all such Claims whether or not arising out Person, it being expressly agreed that the Persons to whom this Section 4.7 applies shall be third party beneficiaries of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claimdirectly enforce, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxySection 4.7.
Appears in 1 contract
Samples: Arrangement Agreement
Insurance and Indemnification. (a) The All rights to indemnification existing in favor of any director or officer of the Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate or any Company Subsidiary as provided in their respective Certificates or Articles of Incorporation or Bylaws or in an agreement between any such director or officer and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Selleror any Company Subsidiary, whereby which agreement is disclosed on Section 6.4(a) of the Company has agreed Disclosure Schedule, shall survive the Merger and shall continue in full force and effect for a period of six (6) years from the Effective Time; provided that in the event any claim or claims are asserted or made within such six (6) year period, all rights to indemnify the Seller indemnification in his capacity as a director respect of the Company. The Company hereby confirms its obligations to the Seller under any such instruments claim or claims shall continue until final disposition of any and its intention to honor all such obligationsclaims.
(b) For ten Parent and the Surviving Corporation shall use their respective reasonable best efforts to maintain the Company's existing officers' and directors' liability insurance ("D&O Insurance") for a period of not less than six (6) years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing DateEffective Time; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company Parent may substitute therefor policies of at least the same substantially equivalent coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous favorable to the insured, so long as the substitute insurer such former directors or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”)officers; provided, howeverfurther, that if the parties in any action existing D&O Insurance expires or is terminated or cancelled during such period, then Parent or the Surviving Corporation shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses use their respective reasonable best efforts to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Companyobtain substantially similar D&O Insurance; and provided further, however, that in no event shall Parent or Purchaser be required to pay aggregate premiums for insurance under this Section 6.4(b) in excess of 200% of the current annual premiums paid by the Company shall forfeit the right to control the defense or settlement of any for such claim if, at any time after assuming the defense or settlement thereof, insurance (which premiums the Company represents and warrants to be approximately $180,000 in the Claim no longer satisfy the Litigation Conditions. Subject aggregate); provided further, however, that prior to the foregoingEffective Time, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, with the consent of Parent (which consent shall not be unreasonably withheld), may purchase insurance for such six (6) year period on a prepaid non-cancelable basis, so long as the premium for such three-year period is not in excess of 200% of the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If per annum premium that the Company elects not to compromise or defend the Claim, fails to notify the Seller currently pays for its existing policy of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expensedirectors' and officers' liability insurance, in the defense of which case, Parent shall have no obligations to maintain such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxyinsurance.
Appears in 1 contract
Samples: Merger Agreement (Landacorp Inc)
Insurance and Indemnification. (a) The Company A. All insurance policies obtained or maintained by Sublicensee will by endorsement specifically name as additional insureds Licensor, any affiliate of Licensor designated by Licensor, and their employees.
B. Sublicensee will, and hereby acknowledges its indemnification obligations to the Seller under the Companydoes, indemnify and, at Licensor’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreementoption, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments defend Licensor and its intention to honor such obligations.
(b) For ten years affiliates, their officers, directors, agents and employees, and their respective successors and assigns, from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all damages, claims, demands, suits, judgments, losses, liabilities, damages, judgments, fines or expenses (including reasonable attorneys’ fees and expenseslitigation costs) incurred by Seller relating to or arising out of any claimnature whatsoever (including, demandbut not limited to, asserted liabilitylibel, suit slander, disparagement, defamation, copyright infringement, trademark infringement, patent infringement, trade secret infringement, invasion of privacy or proceeding of any kind (anypublicity rights, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart piracy and/or plagiarism arising from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to any materials prepared by Sublicensee in connection with the Seller’s service as a director provision of the Company. The Company may elect to compromise Services under this Sublicense Agreement, violation of consumer protection rules, or defendany offerings of Sublicensee not consistent with this Sublicense Agreement or applicable law), at its own expense and by its own counsel, any Claim if arising directly or indirectly from or out of: (i) the Company expressly agrees in writing to the Seller thatany act, as between the twoerror or omission of Sublicensee or its directors, the Company is solely obligated to satisfy and discharge the Claiminvitees or employees, agents, or contractors; and/or (ii) the Company makes reasonably adequate provision to satisfy the Seller any occupational injury or illness sustained by any employees, agents, or contractors of Sublicensee in furtherance of the Company’s ability to satisfy and discharge the claim, and Services hereunder; and/or (iii) any failure of Sublicensee to perform the Claim involves solely monetary damages Services hereunder in accordance with the highest generally accepted professional standards; and/or (collectively, the “Litigation Conditions”); provided, however, that if the parties iv) any breach of Sublicensee’s representations as set forth herein or in any action shall include both other agreement related to the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because provision of the availability Services; and/or (v) any other failure of different Sublicensee to comply with the obligation on its part to be performed hereunder or additional defenses in any other agreement related to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense provision of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them availableServices. The Company will be under no obligation indemnification contained herein shall extend to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller claims occurring after this Sublicense Agreement has breached terminated as well as while this Sublicense Agreement or the Irrevocable Proxyis in force.
Appears in 1 contract
Samples: License Agreement (Marriott International Inc /Md/)
Insurance and Indemnification. (a1) The Company hereby acknowledges its indemnification obligations Prior to the Seller under Effective Time, the Company’s Certificate Company shall and, if the Company is unable after using commercially reasonable efforts, the Purchaser shall cause the Company to, purchase customary fully pre-paid and non-cancelable "tail" policies of Incorporation directors' and officers' liability fiduciary liability, and employment practices liability insurance from an insurer(s) of nationally recognized standing providing protection no less favourable in the aggregate than the protection provided by such policies maintained by or Bylaws and that certain Indemnity Agreement, dated as for the benefit of January 1, 2000, by and between the Company and its Subsidiaries which are in effect immediately prior to the SellerEffective Time and providing protection in respect of claims and other matters arising from actual or alleged acts, whereby omissions, facts or events which occurred on or prior to the Effective Time, and the Purchaser shall, or shall cause the Company has agreed and its Subsidiaries to indemnify maintain such tail policies in full force and effect without any reduction in scope of coverage or limits (other than a reduction of limits due to payments by the Seller insurer(s) under the policies) for six (6) years after the Effective Date; provided that the Purchaser shall not be required to pay any amounts in his capacity as a director respect of such coverage prior to the Effective Time and provided further that the aggregate cost of such policies shall not exceed 350% of the Company. The Company hereby confirms its obligations to the Seller under such instruments 's and its intention Subsidiaries' current annual aggregate premium for directors' and officers' liability, fiduciary liability, and employment practices liability insurance policies currently maintained by the Company or its Subsidiaries. If the Company for any reason fails, after having used commercially reasonable efforts, to honor obtain such obligations.
run off insurance policies as of the Effective Time, the Purchaser shall, or shall cause the Company and its Subsidiaries to, maintain in effect for a period of at least six (b6) For ten years from and after the Closing Date, Effective Time the Company shall maintain directors' and officers' liability insurance in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws place as of the Closing Date; provideddate hereof with terms, howeverconditions, retentions and limits of liability that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, are no less advantageous to the insuredpresent and former directors and officers of the Company and its Subsidiaries than the coverage provided under the Company's and its Subsidiaries' existing policies as of the date hereof, so long or the Company shall purchase comparable directors' and officers' liability insurance for such six-(6) year period with terms, conditions, retentions and limits of liability that are at least as favourable to the substitute insurer present and former directors and officers of the Company and its Subsidiaries as provided in Company's existing policies as of the date hereof; provided, that, the annual premium for such directors' and officers' liability insurance policy may not be in excess of 350% of the Company's and its Subsidiaries' current annual aggregate premium for directors' and officers' liability, fiduciary liability, and employment practices liability insurance policies currently maintained by the Company or carrier has a Best’s rating that is no lower than AX)its Subsidiaries.
(d2) The From and after the Effective Time, the Purchaser shall, to the extent provided for in the Company's Constating Documents on the date hereof, ensure that the Company shall indemnifyindemnify and hold harmless, hold harmless to the fullest extent permitted under applicable Law (and defend to also advance expenses as incurred to the Seller fullest extent permitted under applicable Law), the then present and former officers, directors and managers of the Company and its Subsidiaries against any and all claims, losses, liabilities, damages, judgments, fines costs or expenses (including reasonable attorneys’ fees ' fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Proceeding arising out of or related to such Person's service as an officer, director and expenses) incurred manager of the Company or any of its Subsidiaries or services performed by Seller relating such Persons at the request of the Company or any of its Subsidiaries at or prior to or following the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including the approval or completion of this Agreement and the Arrangement or any of the other transactions contemplated by this Agreement or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect related to this Agreement or the Irrevocable Proxy or and the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase hereby. None of the Shares and Purchaser, the Options. This indemnification obligation is separate and apart from Company or any of their respective Subsidiaries shall settle, compromise or consent to the obligations referred to entry of any judgment in the above paragraphs of this Section 15 and shall apply to any and all Proceeding involving or naming any such Claims whether indemnified Person or not arising out of, based upon of or related to the Seller’s any such indemnified Person's service as a an officer, director and manager or services performed by such indemnified Person at the request of the Company. The Company may elect or any of its Subsidiaries at or prior to or following the Effective Time without the prior written consent (not to be unreasonably withheld or delayed) of that indemnified Person, unless such settlement, compromise or defend, at its own expense consent includes an unconditional release of such indemnified Person from all liability arising out of such Proceeding.
(3) From and by its own counsel, any Claim if (i) after the Company expressly agrees in writing to the Seller that, as between the twoEffective Time, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claimPurchaser shall honour, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both cause the Company and the Sellerits Subsidiaries to honour, and the Seller Company shall have reasonably concluded that counsel selected by honour all rights to indemnification, exculpation and advancement existing as of immediately prior to the Company has a conflict of interest because Effective Time in favour of the availability then present and former Employees, officers, directors and managers of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject its Subsidiaries to the foregoing, if fullest extent permitted by the Constating Documents or applicable Law or under indemnification agreements disclosed in Section 4.12(4) of the Company elects to compromise or defend Disclosure Letter and acknowledges that such Claim, it rights shall within 30 days (or sooner, if survive the nature completion of the Claim so requiresPlan of Arrangement and shall continue in full force and effect in accordance with their terms for a period of not less than six (6) notify years after the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim Effective Date.
(it being understood the Seller shall be entitled to participate in any such defense at its own expense). 4) If the Company elects not to compromise or defend the Claim, fails to notify the Seller any of its election as herein providedSubsidiaries or any of their respective successors or assigns (a) consolidates or amalgamates with, or fails merges or liquidates into, any other Person and is not a continuing or surviving company or entity of such consolidation, amalgamation, merger, amalgamation or liquidation, or (b) transfers all or substantially all of its properties and assets to satisfy the Litigation Conditionsany Person, the Seller may payPurchaser shall ensure that any such successor or assign (including, compromise or defend such Claim at as applicable, any acquirer of substantially all of the expense properties and assets of the Company (it being understood or its Subsidiaries) assumes all of the Company may participate, at its own expense, obligations set forth in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxySection 4.12.
Appears in 1 contract
Samples: Arrangement Agreement (Nuvei Corp)
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity AgreementEffective Time, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company Yxxxxx shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” policies of directors’ and officers’ liability insurance from a reputable and financially sound insurance carrier and containing terms and conditions no less favourable in the aggregate to the protection provided by the policies maintained by Yxxxxx and its Subsidiaries which are in effect immediately prior to the Company at not less than current levels with Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the SellerEffective Time, and after the Effective Time:
(i) Pan American will and will cause Yamana and its Subsidiaries (other than Subsidiaries comprising the Canadian Assets) and any successor to Yxxxxx; and
(ii) Agnico will and will cause any Subsidiaries comprising the Canadian Assets, to maintain such “tail” policies in effect without any reduction in scope or coverage for six years from the Effective Time; provided, that Pan American, Agnico and the Subsidiaries shall not be required to pay any amounts in respect of such coverage prior to the Effective Time and provided further that the cost of such policies shall not exceed 300% (the “Base Premium”) of Yamana’s resignation as current annual aggregate premium for policies currently maintained by Yamana or its Subsidiaries; provided further, however, that if such insurance can only be obtained at a director premium in excess of the Company Base Premium, Yamana may purchase the most advantageous policies of directors’ and officers’ liability insurance reasonably available for an annual premium in excess of the Base Premium, and after the Effective Time:
(provided i) Pan American shall cause Yamana and its Subsidiaries (other than Subsidiaries comprising the Canadian Assets) and any successor to Yxxxxx; and
(ii) Agnico shall and shall cause any Subsidiaries comprising the Canadian Assets, to maintain such coverage for six years from the Effective Date. From and after the Effective Time, Pan American, Agnico and Yxxxxx, as applicable, agree not to take any action to terminate such directors’ and officers’ liability insurance or materially adversely affect the rights of Yxxxxx’s present and former directors and officers thereunder.
(b) After the Effective Time, Pan American will and will cause Yamana and its Subsidiaries (other than Subsidiaries comprising the interests purchased by Agnico pursuant to the Asset Sale) and any successor to Yxxxxx, and Agnico will and will cause any Subsidiaries comprising the interests purchased by Agnico pursuant to the Asset Sale, to honour all rights to indemnification or exculpation now existing in favour of present and former employees, officers and directors of Yamana and its Subsidiaries under Law and under the articles or other constating documents of Yamana and/or its Subsidiaries or under any agreement or contract of any indemnified Person with Yamana or with any of its Subsidiaries, and acknowledges that such rights shall survive the completion of the Plan of Arrangement, and, to the extent within the control of Pan American, Pan American shall ensure that the Company may substitute therefor policies same shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of at least any such indemnified Person and shall continue in full force and effect in accordance with their terms for a period of not less than six years from the same coverage Effective Date.
(c) If Pan American, Agnico, Yamana or any of its Subsidiaries or any of their respective successors or assigns (x) consolidates with or merges into any other Person and amounts containing terms is not a continuing or surviving corporation or entity of such consolidation or merger, or (y) transfers all or substantially all of its properties and conditions which areassets to any Person, then after the Effective Time:
(i) Pan American shall cause Yamana and its Subsidiaries (other than Subsidiaries comprising the Canadian Assets) and any successor to Yxxxxx; and
(ii) Agnico shall and shall cause any Subsidiaries comprising the Canadian Assets, to ensure that any such successor or assign (including, as applicable, any acquirer of substantially all of the properties and assets of Pan American, Agnico, Yamana or any of its Subsidiaries or any of their respective successors or assigns, as applicable) assumes all of the obligations set forth in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)this Section 6.11.
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs provisions of this Section 15 6.11 are intended for the benefit of, and shall apply be enforceable by, each insured or indemnified Person, his or her heirs and his or her legal representatives and, for such purpose, Yxxxxx xxxxxx confirms that it is acting as trustee on their behalf, and agrees to any and all such Claims whether or not arising out ofenforce the provisions of this Section 6.11 on their behalf. Furthermore, based upon or related to this Section 6.11 shall survive the Seller’s service termination of this Agreement as a director result of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller occurrence of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has Effective Date for a conflict period of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxysix years.
Appears in 1 contract
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate Effective Time, MKS shall obtain and pay for “tail” insurance policies with a claims period of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten at least six years from and after the Closing Date, Effective Time from an insurance carrier with the Company shall maintain in effect the same or better credit rating as MKS’s current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of insurance carrier with respect to directors’ and officers’ liability insurance maintained by the Company at and fiduciary liability insurance with benefits and levels of coverage not less favourable than current levels those provided under MKS’s existing policies with respect to acts matters existing or omissions occurring on at or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines Effective Time (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) in connection with respect to this Agreement or the Irrevocable Proxy transactions or the transactions actions contemplated hereby and thereby, including without limitation the Company’s repurchase hereby). If MKS or PTC for any reason fail to obtain such “tail” insurance policies as of the Shares Effective Time, for a period of six years after the Effective Time, PTC will, or will cause MKS and/or its successors to, maintain in effect directors’ and officers’ liability insurance covering those persons who are currently covered by MKS’s directors’ and officers’ liability insurance policy with respect to claims arising from facts or events that occurred on or before the Effective Time on terms comparable (and no less favourable) to those applicable to the current directors and officers of MKS or any MKS Subsidiary.
(b) From and after the Effective Time, PTC will fulfill, and will cause MKS and/or its successors to fulfill and honour in all respects its obligations pursuant to any indemnification agreements between MKS and the Optionspresent and former directors or officers of MKS or any Subsidiary thereof in effect immediately prior to the Effective Time to the extent that they are disclosed in Schedule 7.4(b) to the MKS Disclosure Letter and any indemnification provision under the articles or by-laws of MKS or applicable Laws, in each case, as in effect on the date hereof and permitted by applicable Laws. This PTC shall cause MKS and/or its successors to not amend, repeal or otherwise modify the provisions with respect to exculpation and indemnification obligation is separate and apart contained in the articles or by-laws of MKS as in effect on the date hereof for a period of six years from the obligations referred Effective Time in any manner that would adversely affect the rights thereunder of individuals who, prior to in the above paragraphs Effective Time, were directors or officers of MKS.
(c) The provisions of this Section 15 7.4 are intended for the benefit of, and shall apply to any be enforceable by, each insured or indemnified Person, his or her heirs and all his or her legal representatives and, for such Claims whether or not arising out ofpurpose, based upon or related to MKS hereby confirms that it is acting as agent on their behalf. Furthermore, this Section 7.4 shall survive the Seller’s service termination of this Agreement as a director result of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller occurrence of the Company’s ability to satisfy and discharge the claim, and Effective Date for a period of six (iii6) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxyyears.
Appears in 1 contract
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations From and after the Closing, Purchaser shall cause PinnOak to continue to indemnify and hold harmless each of PinnOak’s and the Subsidiaries’ present and former directors, officers, Employees and agents, in their capacities as such, from and against all damages, costs and expenses actually incurred or suffered in connection with any threatened or pending Action at law or in equity relating to the Seller under business of PinnOak (including actions related to this Agreement or the Company’s Certificate transactions contemplated hereby) or the status of Incorporation such individual as a director, officer, Employee or Bylaws agent at or prior to the Closing, to the fullest extent permitted by applicable Law. Purchaser shall cause PinnOak to retain in the certificate of formation or operating agreement of PinnOak and that certain Indemnity Agreement, dated each Subsidiary any indemnification provision or provisions in effect as of January 1, 2000, by and between the Company date hereof for the benefit of PinnOak’s and the SellerSubsidiaries’ officers, whereby directors, Employees and agents that existed immediately prior to Closing and during the Company has agreed time period prior to indemnify Closing, and not thereafter amend the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations same with respect to such persons (except to the Seller under extent that such instruments amendment preserves, increases or broadens the indemnification or other rights theretofore available to such officers, directors, Employees and its intention to honor such obligationsagents).
(b) For ten six years from and after the Closing DateClosing, the Company Purchaser shall maintain cause to be maintained in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directorsan officers’ and officersdirectors’ liability insurance maintained and indemnification policy, with an insurer with a Standard & Poor’s rating of at least A that provides coverage for acts or omissions occurring prior to the Closing covering each Person currently covered by such insurance policies held by or for the Company at not less than current levels benefit of PinnOak and the Subsidiaries and their respective directors, officers, Employees and agents on terms with respect to acts or coverage and in amounts no less favorable than those of such policies in effect on the date of this Agreement (the “Existing Insurance”). Purchaser shall satisfy its obligations under this Section 6.7(b) by purchasing a “tail” policy from an insurer with a Standard & Poor’s rating of at least A, which (i) has an effective term of six years from the Closing, (ii) covers each Person currently covered by the Existing Insurance for actions and omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, Closing and (iii) contains terms that are no less favorable than those of the Claim involves solely monetary damages Existing Insurance. Notwithstanding the foregoing, Purchaser shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 200% of the annual premiums paid as of the date hereof for such insurance (collectively, the “Litigation ConditionsCurrent Premium”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses . If such premium for such insurance required to the Seller, the Seller shall have the right be maintained pursuant to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, this Section 6.7(b) would at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature exceed 200% of the Claim so requires) notify Current Premium, then Purchaser shall cause to be maintained policies of insurance which, in its good faith determination, provide the Seller of its intent maximum dollar loss coverage available at an annual premium equal to do so, and the Seller shall reasonably cooperate, at the expense 200% of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxyCurrent Premium.
Appears in 1 contract
Insurance and Indemnification. (ai) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity Purchaser will provide each individual who served as a director or officer of the CompanyTarget at any time prior to the Effective Time with liability insurance for a period of six years after the Effective Time no less favorable in coverage and amount than any applicable insurance of the Target in effect immediately prior to the Effective Time; PROVIDED, HOWEVER, if the existing liability insurance expires, or is terminated or canceled by the insurance carrier during such six-year period, the Surviving Corporation will use its best efforts to obtain as much liability insurance as can be obtained for the remainder of such period for a premium not in excess (on an annualized basis) of 150% of the last annual premium paid prior to the date hereof. The Company hereby confirms In fulfillment of its obligations under this clause (i), the Purchaser may arrange insurance providing coverage that in the aggregate is no less favorable to the Seller under such instruments Target's officers and its intention to honor such obligationsdirectors than that which is currently in effect for the Purchaser's officers and directors.
(bii) For ten The Purchaser (A) will not take or knowingly permit to be taken any action to alter or impair any exculpatory or indemnification provisions now existing in the articles of incorporation, bylaws or indemnification and employment agreements of the Target or any of its Subsidiaries for the benefit of any individual who served as a director or officer of the Target or any of its Subsidiaries (an "INDEMNIFIED PARTY") at any time prior to the Effective Time, and (B) shall cause the Surviving Corporation to honor and fulfill such provisions until the date which is six years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Effective Date; providedPROVIDED, howeverHOWEVER, that in the Company may amend event any claim or claims are asserted within such provisions so long as any period, all rights to indemnification in respect of such amendment does not materially and adversely affect claim or claims shall continue until the Sellerfinal disposition thereof.
(ciii) For ten years from To the extent clause (i) above shall not serve to indemnify and after the Closing Datehold harmless an Indemnified Party, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior Purchaser, subject to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which areof this clause (iii), in will indemnify, for a period of six years from the aggregateEffective Date, no less advantageous to the insuredfullest extent permitted under applicable law, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless each Indemnified Party from and defend the Seller against any and all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, liabilitiesexpenses and fees, damages, judgments, fines (including all court costs and reasonable attorneys’ ' fees and expenses) incurred by Seller , resulting from, arising out of, relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to caused by this Agreement or the Irrevocable Proxy or any of the transactions contemplated hereby and therebyherein; PROVIDED, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to HOWEVER, in the above paragraphs event any claim or claims are asserted or threatened within such six-year period, all rights to indemnification in respect of this Section 15 and any such claim or claims shall apply to continue until final disposition of any and all such Claims claims. Any Indemnified Party wishing to claim indemnification under this clause (iii), and notwithstanding the provisions set forth in the Target's articles of incorporation, by-laws or other agreements respecting indemnification of directors or officers, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify the Purchaser thereof, but the failure to so notify shall not relieve the Purchaser of any liability it may have to such Indemnified Party if such failure does not materially prejudice the Purchaser. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or not arising out ofafter the Effective Time), based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (iA) the Company expressly agrees in writing to Purchaser or the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller Surviving Corporation shall have the right to select assume the defense thereof and the Purchaser shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if the Purchaser or the Surviving Corporation fails to assume such defense or counsel for the Purchaser advises that there are issues which raise conflicts of interest between the Purchaser or the Surviving Corporation, on the one hand, and the Indemnified Parties, on the other hand, the Indemnified Parties may retain counsel satisfactory to them, and the Target, the Purchaser or the Purchaser Subsidiary shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; PROVIDED, HOWEVER, that the Purchaser shall be obligated to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, in which case the Purchaser need only pay for separate counsel to participate the extent necessary to resolve such conflict; (B) the Indemnified Parties will reasonably cooperate in the defense of any such matter; and (C) the Purchaser shall not be liable for any settlement effectuated without its prior written consent, which consent shall not be unreasonably withheld or delayed. Purchaser shall not settle any action or claim identified in this Section 5(h)(iii) in any manner that would impose any liability or penalty on his behalfan Indemnified Party not paid by the Purchaser or the Surviving Corporation without such Indemnified Party's prior written consent, at which consent shall not be unreasonably withheld or delayed.
(iv) Notwithstanding anything contained in clause (iii) above, the expense Purchaser shall not have any obligation hereunder to any Indemnified Party (A) if the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law, (B) the conduct of the Company; and provided furtherIndemnified Party relating to the matter for which indemnification is sought involved bad faith or willful misconduct, however, that the Company shall forfeit the right or (C) with respect to control the defense or settlement of actions taken by any such claim ifIndemnified Party in its individual capacity, at including, without limitations, with respect to any time after assuming the defense matters relating, directly or settlement thereofindirectly, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoingpurchase, sale or trading of securities issued by the Target other than a tender or sale pursuant to a stock tender agreement or (D) if such Indemnified Party shall have breached its obligation to cooperate with the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, Purchaser in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt claim in respect of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxyindemnification is sought.
Appears in 1 contract
Insurance and Indemnification. (1) Parent will, or will cause Acquisition Sub to, at Parent’s option, either (a) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained without any reduction in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does scope or coverage for not materially and adversely affect the Seller.
(c) For ten less than six years from and after the Closing Date, the Company shall maintain in effect the current Effective Date customary policies of directors’ and officers’ liability insurance providing protection no less favourable to the protection provided by the policies maintained by Hummingbird in favour of the Company at not less than directors and officers of Hummingbird and each of its subsidiaries which are in effect immediately prior to the Effective Date and providing protection in respect of claims arising from facts or events which occurred prior to the Effective Time or (b) purchase as an extension of Hummingbird’s current levels insurance policies, prepaid non cancellable run-off directors’ and officers’ liability insurance providing coverage comparable to that contained in Hummingbird’s existing policy for six years from the Effective Time with respect to acts claims arising from or omissions occurring on related to facts or events that occurred at or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)Effective Time.
(d2) The Company shall indemnify, hold harmless and defend Parent agrees that all rights to indemnification or exculpation existing in favour of the Seller against directors or officers of Hummingbird or any and all claims, losses, liabilities, damages, judgments, fines subsidiary of Hummingbird as at the date of the Non-Disclosure Agreement (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a the “ClaimHummingbird D&O Rights”) with respect to this Agreement as provided in Hummingbird’s articles or by-laws or as disclosed in Section 7.7 of the Irrevocable Proxy or Disclosure Letter shall survive the transactions contemplated hereby and therebyshall continue in full force and effect for a period of not less than six years from the Effective Time. For a period of six years from the Effective Date, including without limitation Parent will, or will cause Acquisition Sub or Hummingbird to, perform the Companyobligations of Hummingbird under the Hummingbird D&O Rights.
(3) In the event Hummingbird or any of its successors or assigns (a) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (b) transfers all or substantially all of its properties and assets to any person, then, and in such case, proper provision shall be made so that such successors and assigns of Hummingbird or, at Parent’s repurchase option, Parent, shall assume the obligations set forth in this Section 7.7.
(4) This Section 7.7 shall survive the consummation of the Shares Arrangement, is intended to benefit Hummingbird and the Options. This indemnification obligation is separate each of its directors and apart from the obligations referred to in the above paragraphs of this Section 15 officers and their respective heirs and personal representatives and shall apply to any be enforceable by such directors and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense officers and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy their respective heirs and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxypersonal representatives.
Appears in 1 contract
Insurance and Indemnification. (a1) The Parties agree that all rights to indemnification or exculpation now existing in favour of the present and former directors and officers of the Company hereby acknowledges or of any of its indemnification obligations Subsidiaries or who acts as a fiduciary under any Company Plan (each such present or former director or officer of the Company or of any of its Subsidiaries or fiduciary being herein referred to as an “Indemnified Party” and such Persons collectively being referred to as the “Indemnified Parties”) as provided in the constating documents of the Company or any of its Subsidiaries in effect as of the date of this Agreement or any Contract by which the Company or any of its Subsidiaries is bound and which is in effect as of the date hereof (including provisions relating to the Seller under advancement of expenses incurred in the Company’s Certificate defense of Incorporation any action or Bylaws suit), copies of which have been delivered to the Purchaser, will survive the completion of the Plan of Arrangement and that certain Indemnity Agreementcontinue in full force and effect and without modification for a period of not less than six years from the Effective Time, dated as with respect to actions or omissions of January 1the Indemnified Parties occurring prior to the Effective Time.
(2) The Purchaser will, 2000, by and between or will cause the Company and the Sellerits Subsidiaries to, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
for six (c6) For ten years from and after the Closing Date, the Company shall maintain in effect the current Effective Date customary policies of directors’ and officers’ liability insurance providing protection no less favourable to the protection provided by the policies maintained by the Company at not less than current levels with and its Subsidiaries which are in effect immediately prior to the Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”)Effective Date; provided, however, that if the parties Purchaser acknowledges and agrees that prior to the Effective Time, notwithstanding any other provision hereof, the Company may, at its option, purchase prepaid run-off directors’ and officers’ liability insurance on terms substantially similar to the directors’ and officers’ liability policies currently maintained by the Company, but providing coverage for a period of six (6) years from the Effective Date with respect to claims arising from or related to facts or events which occurred on or prior to the Effective Date; provided further, that the premiums for any such policies, including any policy the Purchaser puts in any action place, shall include both not exceed 250% of the current premium paid by the Company and its Subsidiaries (it being understood and agreed that in the Sellerevent such directors’ and officers’ liability insurance cannot be obtained for 250% of such last annual premium or less, in the aggregate, the Purchaser shall only remain obligated to provide the greatest directors’ and officers’ liability insurance coverage as may be obtained for such amount).
(3) The provisions of this Section 4.12 are and are intended to be for the benefit of, and the Seller shall have reasonably concluded that counsel selected will be enforceable by, each Indemnified Party, his or her heirs, executors, administrators and other legal representatives and such rights will be held by the Company has a conflict of interest because of the availability of different or additional defenses Company, and any successor to the SellerCompany (including any surviving corporation), in trust for such Persons and the Seller shall have Company hereby accepts such trust and agrees to hold the right to select separate counsel to participate in the defense benefit of and enforce performance of such action covenants on behalf of each Indemnified Party, his behalfor her heirs, at the expense of the Companyexecutors, administrators and other legal representatives; and provided furtherprovided, however, that the Company shall forfeit the right to control the defense or settlement no approval of any beneficiary of such claim if, at any time after assuming trust will be required in connection with an amendment or variation of this Section 4.12 prior to the defense or settlement thereofEffective Time.
(4) If the Purchaser, the Company or any of its Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the Claim no longer satisfy continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, the Litigation Conditions. Subject Purchaser shall ensure that any such successor or assign (including, as applicable, any acquirer of substantially all of the properties and assets of the Company or any of its Subsidiaries) assumes all of the obligations set forth in this Section 4.12.
(5) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive or impair any rights to directors’ and officers’ liability insurance claims under any policy that is or has been in existence with respect to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller any of its intent to do soSubsidiaries for any of its respective directors, and the Seller shall reasonably cooperateofficers or other employees, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood and agreed that the Seller shall be entitled indemnification and other rights provided for in this Section 4.12 are not prior to participate or in substitution for any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend claims under such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxypolicies.
Appears in 1 contract
Samples: Arrangement Agreement (Harvest Health & Recreation Inc.)
Insurance and Indemnification. (a1) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Effective Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification ofFrankly may, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provideddiscretion, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” policies of directors’ and officers’ liability insurance providing protection no less favourable in the aggregate to the protection provided by the policies maintained by Frankly and its Subsidiaries which are in effect immediately prior to the Company at not less than current levels with Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the SellerEffective Date and Torque shall, or shall cause Frankly and its Subsidiaries to maintain such tail policies in effect without any reduction in scope or coverage for six (6) years from the Effective Date; provided that Torque shall not be required to pay any amounts in respect of such coverage prior to the Effective Time and provided further that the cost of such policies shall not exceed 300% of Frankly’s resignation current annual aggregate premium for policies currently maintained by Frankly or its Subsidiaries.
(2) Prior to the Effective Date, WinView may, in its discretion, purchase customary “tail” policies of directors’ and officers’ liability insurance providing protection no less favourable in the aggregate to the protection provided by the policies maintained by WinView which are in effect immediately prior to the Effective Date and providing protection in respect of claims arising from facts or events which occurred on or prior to the Effective Date and Torque shall, or shall cause the Surviving Corporation to, maintain such tail policies in effect without any reduction in scope or coverage for six (6) years from the Effective Date; provided that Torque shall not be required to pay any amounts in respect of such coverage prior to the Effective Time and provided further that the cost of such policies shall not exceed 300% of WinView’s current annual aggregate premium for policies currently maintained by WinView.
(3) Torque shall, following the Effective Date, cause Frankly to honour all rights to indemnification or exculpation now existing in favour of present and former employees, officers and directors of Frankly and its Subsidiaries to the extent that they are (i) included in the Constating Documents of Frankly or any of its Subsidiaries, or (ii) disclosed in Section 5.8(3) of the Frankly Disclosure Letter, and acknowledges that such rights under both (i) and (ii) shall survive the completion of the Transaction and shall continue in full force and effect in accordance with their terms for a period of not less than six (6) years from the Effective Date.
(4) Torque shall, following the Effective Date, cause the Surviving Corporation to honour all rights to indemnification or exculpation now existing in favour of present and former employees, officers and directors of WinView to the extent that they are (i) included in the Constating Documents of WinView, or (ii) included in the WinView Filings, and acknowledges that such rights under both (i) and (ii) shall survive the completion of the Transaction and shall continue in full force and effect in accordance with their terms for a period of not less than six (6) years from the Effective Date.
(5) Torque shall, from and after the Effective Date, maintain in effect directors’ and officers’ liability insurance and fiduciary liability insurance in respect of acts or omissions by the Indemnified Parties in connection with any Indemnified Party’s service as an officer, director, chairman of the board or other fiduciary of WinView, Frankly or Torque for a period of not less than six (6) years from the date that such Indemnified Party no longer serves as an officer, director or other fiduciary of WinView, Frankly or Torque.
(6) Torque shall, from and after the Effective Date, to the fullest extent permitted by applicable Law, indemnify and hold harmless each of the current and former directors and officers of WinView and Frankly (each, an “Indemnified Party” and, collectively, the “Indemnified Parties”) from and against, and shall compensate and reimburse the Indemnified Parties for (including advancing expenses in the case of any litigation), any loss, damage, injury, claim, demand, settlement, judgment, award, fine, penalty, tax, fee (including reasonable attorneys’ fees), charge, cost (including costs of investigation) or expense of any nature (collectively, “Damages”) which are directly or indirectly suffered or incurred by any Indemnified Party, or to which any Indemnified Party may otherwise directly or indirectly become subject (regardless of whether or not such Damages relate to any third party claim) and which arise directly or indirectly from or as a director result of, or are directly or indirectly connected with, acts or omissions by such Indemnified Party in connection with his or her service as an officer, director, chairman of the Company board or other fiduciary of WinView or Frankly, including the negotiation or consummation of this Agreement or the Transaction.
(provided 7) Torque shall (i) for a period of twelve (12) months following the Effective Date, provide base compensation and employment benefits to continuing Frankly and WinView employees that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which areare no less favourable, in the aggregate, no less advantageous than the base compensation and employee benefits that Torque provides to its similarly situated employees, and (ii) grant service credit to continuing Frankly and WinView employees in respect of their Frankly and WinView employment for purposes of eligibility to participate in, and vesting under, Torque plans.
(8) Torque shall, from and after the insuredEffective Date, so long cause the Surviving Corporation to perform all of its obligations under each WinView Consulting Agreement.
(9) If Frankly or any of its Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not a continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, Torque shall ensure that any such successor or assign (including, as applicable, any acquirer of substantially all of the substitute insurer properties and assets of Frankly or carrier has a Bestits Subsidiaries) assumes all of Frankly’s rating that is no lower than AXobligations set forth in this Section 5.8.
(10) Torque shall act as agent and trustee of the benefits of the foregoing for the current and former directors and officers of Frankly for the purpose of Section 5.8(3). This Section 5.8 shall survive the execution and delivery of this Agreement and the completion of the Transaction and shall be enforceable against Torque by the Persons described in Section 5.8(3).
(d11) The Company Torque shall indemnify, hold harmless act as agent and defend trustee of the Seller against any benefits of the foregoing for the current and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees former directors and expenses) incurred by Seller relating to or arising out officers of any claim, demand, asserted liability, suit or proceeding WinView for the purpose of any kind (any, a “Claim”) with respect to Section 5.8(4). This Section 5.8 shall survive the execution and delivery of this Agreement or and the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase completion of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 Transaction and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected be enforceable against Torque by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate Persons described in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expenseSection 5.8(4). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.
Appears in 1 contract
Samples: Business Combination Agreement (Torque Esports Corp.)
Insurance and Indemnification. (a) 6.1 The Company hereby acknowledges its indemnification obligations to shall provide the Seller under Executive with directors' and officers' (D&O) liability insurance coverage. The Company shall, at all times, carry no less that $5 million in such D&O insurance. In the event that the Company’s Certificate of Incorporation 's directors' and officers' liability insurance coverage lapses, and if the Executive is a party to or Bylaws and that certain Indemnity Agreementis threatened to be made a party to any threatened, dated as of January 1pending or completed claim, 2000action, by and between the Company and the Sellersuit, whereby the Company has agreed to indemnify the Seller in his capacity as a or proceeding, or appeal therefrom, whether civil, criminal administrative, investigative, or otherwise, because he is or was an officer and/or director of the Company. The Company hereby confirms its obligations or at the express request of the Company is or was serving for purposes reasonably understood by him to be for the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing DateCompany as a director, officer, partner, employee, agent, trustee, or in any other capacity of an association, corporation, general or limited partnership, joint venture, trust, or other entity, the Company shall maintain in effect indemnify the current provisions regarding limitation of liability of directors and indemnification ofExecutive against, and advancement of expenses toshall pay and advance, directors as contained all reasonable expenses, including attorney's fees and disbursements, and any judgments, fines, and amounts paid in its settlement incurred by him in connection with such claim, action, suit, proceeding, or appeal therefrom, to the fullest extent permitted under the Company's Certificate of Incorporation and Bylaws as of the Closing Date; provided("Certificate"), however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Sellerbylaws ("Bylaws") or applicable law.
(c) For ten years from 6.2 The Executive's coverage under the D&O insurance policy referenced above, and after the Closing Date, Company's obligation to indemnify the Company shall maintain in effect Executive as provided above and to the current policies of directors’ and officers’ liability insurance maintained extent permitted by the Company at not less than current levels with respect Certificate, Bylaws, and applicable law, shall survive the expiration of this Agreement until the expiration of any statute of limitations applicable to acts a claim brought against Executive because he is or omissions occurring on or prior to the Seller’s resignation as a was an officer and/or director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, as necessary to adequately protect Executive in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director event of the Company's insolvency. The Company may elect to compromise or defend-------------------------------------------------------------------------------- Employment Agreement Page 8 April ___, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.2004
Appears in 1 contract
Samples: Employment Agreement (Cytomedix Inc)
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity AgreementEffective Time, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company Greenbrook shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” policies of directors’ and officers’ liability insurance from a reputable and financially sound insurance carrier and containing terms and conditions no less favourable in the aggregate to the protection provided by the policies maintained by Greenbrook and its Subsidiaries which are in effect immediately prior to the Company at not less than current levels with Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the SellerEffective Time and Greenbrook will and will cause its Subsidiaries to, maintain such “tail” policies in effect without any reduction in scope or coverage for six years from the Effective Time; provided, that Greenbrook and its Subsidiaries shall not be required to pay any amounts in respect of such coverage prior to the Effective Time and provided further that the cost of such policies shall not exceed 300% of Greenbrook’s resignation as a director current annual aggregate premium for policies currently maintained by Greenbrook or its Subsidiaries.
(b) Greenbrook will, and will cause its Subsidiaries to, honour all rights to indemnification or exculpation now existing in favour of present and former employees, officers and directors of Greenbrook and its Subsidiaries under Law and under the articles or other constating documents of Greenbrook and/or its Subsidiaries or under any agreement or contract of any indemnified person with Greenbrook or with any of its Subsidiaries, and acknowledges that such rights shall survive the completion of the Company (provided Plan of Arrangement, and, to the extent within the control of Greenbrook, Greenbrook shall ensure that the Company may substitute therefor policies same shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of at least any such indemnified person and shall continue in full force and effect in accordance with their terms for a period of not less than six years from the same coverage Effective Date.
(c) From and amounts containing terms following the Effective Time, Neuronetics will cause Greenbrook to comply with its obligations under Section 5.11(a) and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AXSection 5.11(b).
(d) The Company If Neuronetics, Greenbrook or any of its Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not a continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, Neuronetics shall indemnifyensure that any such successor or assign (including, hold harmless and defend the Seller against as applicable, any and acquirer of substantially all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares properties and the Options. This indemnification obligation is separate and apart from assets of Greenbrook or its Subsidiaries) assumes all of the obligations referred to set forth in the above paragraphs this Section 5.11.
(e) The provisions of this Section 15 5.11 are intended for the benefit of, and shall apply be enforceable by, each insured or indemnified Person, his or her heirs and his or her legal representatives and, for such purpose, Xxxxxxxxxx hereby confirms that it is acting as trustee on their behalf, and agrees to any and all such Claims whether or not arising out ofenforce the provisions of this Section 5.11 on their behalf. Furthermore, based upon or related to this Section 5.11 shall survive the Seller’s service termination of this Agreement as a director result of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller occurrence of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has Effective Date for a conflict period of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxysix years.
Appears in 1 contract
Insurance and Indemnification. (a1) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Effective Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” policies of directors’ and officers’ liability insurance providing protection no less favourable in the aggregate than the protection provided by the policies maintained by the Company at not less than current levels with which are in effect immediately prior to the Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the Seller’s resignation as a director of Effective Date and the Purchaser will, or will cause the Company to maintain such tail policies in effect without any reduction in scope or coverage for six (6) years from the Effective Date; provided that the Company may substitute therefor policies Purchaser will not be required to pay any amounts in respect of at least the same such coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous prior to the insured, so long as Effective Time and provided further that the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company cost of such policies shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller exceed 200% of the Company’s ability current annual aggregate premium for policies currently maintained by the Company.
(2) The Purchaser shall honour all rights to satisfy indemnification or exculpation now existing in favour of present and discharge the claimformer employees, officers and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both directors of the Company and its Subsidiaries to the Sellerextent that they are disclosed in Section 4.8(2) of the Company Disclosure Letter, and acknowledges that such rights, to the Seller shall have reasonably concluded extent that counsel selected by they are disclosed in Section 4.8(2) of the Company has a conflict of interest because Disclosure Letter, shall survive the completion of the availability Plan of different or additional defenses to Arrangement and shall continue in full force and effect in accordance with their terms for a period of not less than six (6) years from the SellerEffective Date. The provisions of this Section 4.8 shall be binding, the Seller shall have the right to select separate counsel to participate in the defense of such action jointly and severally, on his behalf, at the expense all successors of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days Purchaser.
(or sooner, if the nature of the Claim so requires3) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller any of its election as herein providedSubsidiaries or any of their respective successors or assigns (i) consolidates or amalgamates with or merges or liquidates into any other Person and is not a continuing or surviving corporation or entity of such consolidation, amalgamation, merger or liquidation, or fails (ii) transfers all or substantially all of its properties and assets to satisfy the Litigation Conditionsany Person, the Seller may payPurchaser shall ensure that any such successor or assign (including, compromise or defend such Claim at as applicable, any acquirer of substantially all of the expense properties and assets of the Company (it being understood or its Subsidiaries) assumes all of the Company may participate, at its own expense, obligations set forth in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxySection 4.8.
Appears in 1 contract
Insurance and Indemnification. (a) The Company hereby acknowledges its Parent agrees that all ----------------------------- rights to indemnification obligations and advancement of expenses for acts or omissions occurring prior to the Seller under Effective Time (including for acts or omissions of directors occurring prior to the Company’s Certificate Effective Time in connection with the adoption of Incorporation this Agreement and the approval of the Transactions) now existing in favor of the current or Bylaws and that certain Indemnity Agreement, dated as former directors or officers of January 1, 2000, by and between the Company and the SellerCompany Subsidiaries, whereby and their respective heirs and representatives (each an "Indemnified Party"), provided in the Company has agreed to indemnify the Seller in his capacity as a director Organizational Documents or ----------------- Subsidiary Organizational Documents and any indemnification agreements or arrangements of the Company. The Company hereby confirms its obligations and the Company Subsidiaries or as to the Seller under such instruments fullest extent permitted by law shall survive the Merger and its intention shall continue in full force and effect in accordance with their terms for a period of six years following the Effective Time. Parent shall cause to honor such obligations.
(b) For ten years from be included and after the Closing Date, the Company shall maintain to be maintained in effect in the current Surviving Corporation's (or any successor's) certificate of incorporation and by-laws, during such six-year period following the Effective Time, provisions regarding limitation elimination of liability of directors, indemnification of officers and directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as Indemnified Parties than the substitute insurer or carrier has a Best’s rating that is no lower than AX)corresponding provisions contained in the Company Organizational Documents.
(db) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement Parent or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation Surviving Corporation shall maintain the Company’s repurchase 's existing officers' and directors' liability insurance ("D&O --- Insurance") for a period of not less than three years after the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”)Effective Time; --------- provided, however, that Parent may substitute therefor policies of substantially -------- ------- equivalent coverage and amounts containing terms no less favorable to such former directors or officers; provided further, that if the parties existing D&O -------- ------- Insurance expires or is terminated or cancelled during such period, then Parent or the Surviving Corporation shall use reasonable best efforts to obtain substantially similar D&O Insurance or, if not obtainable, Parent shall obtain as much D&O Insurance as can be obtained for an annual premium not in any action shall include both excess of 200% of the Company and average of the Seller, and the Seller shall have reasonably concluded that counsel selected premiums paid by the Company has a conflict of interest because of in 1998, 1999 and 2000 for D&O Insurance (the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company"Average Premium"); and provided further, however, that the Company in no --------------- -------- ------- event shall forfeit the right Parent be required to control the defense or settlement pay annual premiums for insurance under this Section 7.6(b) in excess of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature 200% of the Claim so requiresAverage Premium; and provided, further, that if Parent or ------- the Surviving Corporation is unable to obtain the amount of insurance required by this Section 7.6(b) notify for such annual premium, Parent or the Seller Surviving Corporation shall obtain as much insurance as can be obtained for an annual premium not in excess of its intent to do so, and the Seller shall reasonably cooperate, at the expense 200% of the Company, in Average Premium. The premium for D&O Insurance for the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense 12-month period ending May 2002 is set forth on Section 7.6(b) of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxyDisclosure Schedule.
Appears in 1 contract
Samples: Merger Agreement (Steelcase Inc)
Insurance and Indemnification. (a1) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Effective Date, the Company Corporation shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” policies of directors’ and officers’ liability insurance providing protection no less favourable in the aggregate to the protection provided by the policies maintained by the Company at not less than current levels with Corporation and its Subsidiaries which are in effect immediately prior to the Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the Seller’s resignation as a director Effective Date, and the Parent shall, or shall cause the Corporation and its Subsidiaries to maintain such tail policies in effect without any reduction in scope or coverage for six (6) years from the Effective Date; provided that none of the Company (Parent, the Purchaser or any of their respective affiliates shall be required to pay any amounts in respect of such coverage prior to the Effective Time; and provided further that the Company may substitute therefor aggregate cost of such policies shall not exceed 300% of at least the same coverage aggregate annual premium for policies currently maintained by the Corporation and amounts containing terms and conditions which are, its Subsidiaries as set forth in Section 4.9 of the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)Corporation Disclosure Letter.
(d2) The Company Parent shall indemnify, hold harmless cause the Corporation and defend the Seller against any its Subsidiaries to (a) honour all rights to indemnification or exculpation in favour of present and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees former officers and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase directors of the Shares Corporation and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related its Subsidiaries to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if extent that they are (i) the Company expressly agrees now existing and contained in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, their Constating Documents or (ii) disclosed in the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claimCorporation Disclosure Letter, and (iiib) acknowledge that such rights, to the Claim involves solely monetary damages extent that they are contained in their Constating Documents or disclosed in the Corporation Disclosure Letter, shall not be amended or rescinded in a manner adverse to the applicable officer or director and shall survive the completion of the Plan of Arrangement and shall continue in full force and effect in accordance with their terms, in each case, for a period of not less than six (collectively6) years from the Effective Date.
(3) If Parent, the “Litigation Conditions”); providedCorporation or any of its Subsidiaries, howeveror any of their respective successors or assigns (i) consolidates or amalgamates with or merges or liquidates into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation, that if the parties in amalgamation, merger or liquidation or (ii) transfers or conveys all or substantially all of its properties and assets to any action shall include both the Company and the SellerPerson, then, and in each such case, proper provision shall be made so that any such successor and assign shall assume the Seller obligations set forth in this Section 4.9.
(4) This Section 4.9 shall have reasonably concluded that counsel selected by survive the Company has a conflict of interest because consummation of the availability of different or additional defenses Arrangement and is intended to be for the Sellerbenefit of, and shall be enforceable by, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense present and former directors and officers of the Company; Corporation and provided furtherits Subsidiaries and their respective heirs, howeverexecutors, that administrators and personal representatives (the Company Indemnified Persons) and shall forfeit be binding on the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereofParent, the Company Corporation, its Subsidiaries and their respective successors and assigns, and, for such purpose, the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, Corporation hereby confirms that it shall within 30 days (or sooner, if the nature is acting as agent on behalf of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxyIndemnified Persons.
Appears in 1 contract
Samples: Arrangement Agreement (Fusion Pharmaceuticals Inc.)
Insurance and Indemnification. 9.1 YMB and ALLPHASE shall each maintain, at its sale cost and expense, insurance coverage with a reputable insurer (which shall be either occurrence based or claims made coverage) in an amount usual and customary for companies engaged in activities as contemplated by this Agreement. All such insurance shall be in place before the first patient is enrolled in the Study. Each shall designate the other party as an additional named insured on all such policies, where possible. The Parties will endeavour to advise the other Party in writing within twenty-eight (28) days of its intention to cancel the policy.
9.2 If either party maintains it claims-made policy and this Agreement expires or terminates for any reason, then that party shall either: 1) continue to maintain the same or higher coverage with an insurance carrier for a period of two (2) years thereafter; or 2) purchase "Tail Coverage" effective until the second (2nd) anniversary date of the expiration or termination of this Agreement; or 3) obtain and maintain "Prior Acts" coverage equivalent in time and coverage as the "Tail Coverage" described herein.
9.3 Upon request by either party, the other party shall provide evidence of that party's compliance with this Section 9.1 and/or 9.2.
9.4 ALLPHASE agrees to defend, indemnify, save and hold harmless YMB and its parent, subsidiaries and affiliates and their respective directors, officers, employees and agents (the "YMB Indemnities") from and against any third party claims, demands, suits, actions, causes of action, losses, damages, fines and liabilities, including reasonable legal fees and disbursements (the "Claims") arising out of or in connection with or attributable to: (a) The Company hereby acknowledges its indemnification obligations ALLPHASE's wilful failure to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity comply with this Agreement, dated as of January 1, 2000, by Work Order or Protocol and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
any amendments thereto; (b) For ten years from and after the Closing Date, the Company shall maintain ALLPHASE's gross negligence or willful misconduct in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as performance of the Closing DateServices; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Dateviolations of applicable Laws, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts GLPs or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
GCPs; and/or (d) The Company ALLPHASE's submission of false or incorrect data and information to YMB; except to the extent any of the Claims arise from the gross negligence or wilful misconduct of YMB. ALLPHASE agrees to pay the reasonable costs and damages arising from such Claims, after exhaustion of all reasonable appeals, provided that YMB provides ALLPHASE with written notice of the Claims within five business (5) days of the date YMB receives notice of the Claim and YMB provides ALLPHASE with reasonable information and assistance required to defend the Claim. ALLPHASE shall have the sale authority to defend and/or settle the Claim, provided that ALLPHASE may not settle a Claim that includes an admission of liability on the part of YMB without YMB's prior written consent.
9.5 YMB agrees to defend, indemnify, save and hold harmless ALLPHASE and defend its parent, subsidiaries and affiliates and their respective directors, officers, employees and agents (the Seller "ALLPHASE Indemnities") from and against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or Claims arising out of or in connection with or attributable to: (a) the research (including the ethical review of the Protocol and related materials), development, manufacture, distribution, use, sale or other disposition of the Test Materials by YMB, or any claimdistributor, demandcollaborator, asserted liabilitycustomer, suit sublicense, representative or proceeding agent of YMB; (b) an infringement of any kind third party's patent rights or unauthorized use or misappropriation of its intellectual property pertaining to the Test Materials; and/or (any, a “Claim”c) YMB's gross negligence or willful misconduct in connection with respect to this Agreement or YMB agrees to pay the Irrevocable Proxy or the transactions contemplated hereby reasonable costs and therebydamages arising from such Claims, including without limitation the Company’s repurchase after exhaustion of all reasonable appeals, provided that ALLPHASE has given YMB written notice of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director within five business (5) days of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge date ALLPHASE receives notice of the Claim, (ii) and ALLPHASE has provided information and reasonable assistance required to defend the Company makes reasonably adequate provision Claim. YMB shall have the sole authority to satisfy the Seller of the Company’s ability to satisfy and discharge defend and/or settle the claim, and (iii) provided that YMB may not settle a claim that includes all admission of liability on the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict part of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxyALLPHASE without ALLPHASE's prior written consent.
Appears in 1 contract
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and Bank shall permit Seller to use commercially reasonable efforts to extend the Seller, whereby discovery period of its directors' and officers' liability insurance for a period of up to 48 months with respect to all matters arising from facts or events which occurred before the Company has agreed Effective Time for which Seller would have had an obligation to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Dateofficers; provided, however, that the total aggregate costs to Seller, Company may amend and Bank of the premiums for such provisions so long coverage shall not exceed 160% of the current annual amount expended by Seller (the "Insurance Amount"). If Company is unable to maintain or obtain the insurance called for by this Section 5.8 as any such amendment does not materially and adversely affect a result of the Seller.
(c) For ten years from and after the Closing Datepreceding provision, the Company shall maintain in effect use commercially reasonable efforts to obtain as much comparable insurance as is available for the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels Insurance Amount with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director Effective Time of the Merger by such directors and officers in their capacities as such. If Company (provided shall consolidate with or merge into any other entity and shall not be the continuing or surviving entity of such consolidation or merger or shall transfer all or substantially all of its assets to any other entity, then and in each case, proper provision shall be made so that the successors and assigns of Company may substitute therefor policies of at least shall assume the same coverage and amounts containing terms and conditions which are, obligations set forth in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)this Section 5.8.
(db) The For a period of 48 months after the Effective Time, Company shall, and shall indemnifycause its subsidiaries to, hold harmless maintain and defend preserve the rights to indemnification of officers and directors provided for in the Charter Documents of Seller against any as in effect on the date hereof with respect to indemnification for liabilities and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or claims arising out of any claimacts, demandomissions, asserted liabilityevents, suit matters or proceeding of any kind (anycircumstances occurring or existing prior to the Effective Time, a “Claim”) with respect to this Agreement or including, without limitation, the Irrevocable Proxy or Bank Merger and the other transactions contemplated hereby and therebyby this Agreement, including without limitation to the Company’s repurchase extent such rights to indemnification are not in excess of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs maximum permitted by applicable state or federal laws or regulatory authorities.
(c) The provisions of this Section 15 are intended to be for the benefit of, and shall apply be enforceable by, each director or officer of Seller and his or her heirs and representatives. There shall be no duplication of benefits pursuant to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if Section 5.8 (ia) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”b); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.
Appears in 1 contract
Insurance and Indemnification. (ai) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity Buyer will provide each individual who served as a director or officer of the Company. The Company hereby confirms Target or any of its obligations Subsidiaries at any time prior to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ Effective Time with liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or failures to act prior to the Seller’s resignation as Effective Time for a director period of six years after the Effective Time which liability insurance shall be no less favorable in coverage and amount than any applicable insurance in effect immediately prior to the Effective Time (other than to the extent the available limit of any such insurance policy may be reduced or exhausted by reason of the Company (provided that the Company may substitute therefor policies payment of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller claims thereunder relating to such directors or arising out officers of Target or any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”Subsidiaries); provided, however, that in order to maintain or procure such coverage, neither the Buyer nor the Surviving Corporation, as applicable, shall be required to pay, in the aggregate, an annual premium in excess of 300% of the current annual premium paid by the Target for its existing coverage (the "Insurance Premium Cap"); and provided, further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the parties Insurance Premium Cap, the Buyer and the Surviving Corporation shall only be required to obtain as much coverage as can be obtained by paying, in the aggregate, an annual premium equal to the Insurance Premium Cap.
(ii) Except as permitted under Section 2(d)(ii) and (iii), for a period of six years after the Effective Time, the Buyer will not take any action shall include both to alter or impair any exculpatory or indemnification provisions existing in the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict articles of interest because incorporation or bylaws of the availability of different Surviving Corporation (except as required by Virginia Corporation Law or additional defenses federal law) to the Seller, the Seller shall have the right extent that such modifications are less advantageous to select separate counsel to participate in the defense of such action on his behalf, at the expense any individual who served as a director or officer of the Company; and provided further, however, that the Company shall forfeit the right to control the defense Target or settlement any of any such claim if, its Subsidiaries at any time after assuming prior to the defense Effective Time than the exculpatory or settlement thereofindemnification provisions contained in the articles of incorporation or bylaws of the Target as of the date hereof.
(iii) If the Merger is consummated, the Company Buyer and Surviving Corporation will indemnify each individual who served as a director or officer of the Claim no longer satisfy the Litigation Conditions. Subject Target or any of its Subsidiaries at any time prior to the foregoingEffective Time from and against any and all actions, if the Company elects to compromise or defend such Claimsuits, it shall within 30 days (or soonerproceedings, if the nature of the Claim so requires) notify the Seller of its intent to do sohearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, expenses, and the Seller shall reasonably cooperatefees, at the expense of the Companyincluding all court costs and reasonable attorneys' fees and expenses, in the compromise resulting from, arising out of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim caused by the Company that the Seller has breached this Agreement or any of the Irrevocable Proxytransactions contemplated herein.
Appears in 1 contract
Insurance and Indemnification. (a1) The Company hereby acknowledges its indemnification obligations Prior to the Seller under Effective Date, the Company shall obtain and pay the full premiums for the extension of the Company’s Certificate policies of Incorporation directors and officers liability insurance for a claims reporting or Bylaws run-off and that certain Indemnity Agreement, dated as extended reporting period of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
at least six (b6) For ten years from and after the Closing Effective Date, provided that any such run-off or “tail” policies obtained are consistent with policies obtained in similar circumstances for other companies comparable to the Company (in terms of market value) in its relevant industry. Such directors and officers insurance shall maintain cover the present and former directors and officers of the Company with respect to any claim or matter insured related to any period of time on or prior to the Effective Date and otherwise with respect to any act or omission on the part of such directors and officers in their capacities as directors and officers of the Company (including without limitation in connection with the entering into of this Agreement, the approval and completion of the Arrangement and each of the transactions contemplated thereby), with terms, conditions, retentions and limits of liability that are no less favourable to the indemnified persons than the coverage provided under the existing insurance policies of the Company.
(2) The Purchaser shall and shall cause the Company (and any successors) to honour all rights to indemnification and exculpation now existing in favour of present and former directors, officers and employees of the Company and the Purchaser shall cause the Company to ensure that the articles and bylaws of the Company (or any successor thereto) contain substantially the same provisions with respect to indemnification set forth in the articles and bylaws of the Company in effect immediately prior to the current Effective Date, which provisions regarding limitation shall not, except to the extent required by Law, be materially amended, repealed or otherwise modified for a period of liability of directors and indemnification of, and advancement of expenses to, directors as contained six (6) years from the Effective Date in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, howeverany manner, that the Company may amend such provisions so long as any such amendment does not would materially and adversely affect the Sellerrights thereunder of individuals who at any time on or before the Effective Date, were directors, officers or employees of the Company.
(c3) For ten years from The provisions of this Section 4.9 are intended for the benefit of, and after the Closing Dateshall be enforceable by each insured or indemnified person, his or her heirs, executors, administrators and other legal representatives and, for such purpose, the Company shall maintain in effect the current policies of directors’ (including any successor) hereby confirms that it is acting as agent and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring trustee on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)their behalf.
(d4) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) If the Company expressly agrees in writing to or any of its successors consolidates with or merges into any other person and is not the Seller thatcontinuing or surviving corporation or entity of such consolidation or merger, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action proper provisions shall include both be made by the Company and the Seller, and Purchaser so that the Seller shall have reasonably concluded that counsel selected by the Company has a conflict successors of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature assume all of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense obligations of the Company set forth in this Section 4.9.
(it being understood 5) The Purchaser will and will cause the Company may participateto honour and abide by and perform the terms of all agreements of the Company with its directors, at its own expenseofficers and employees in effect on the Effective Date, including without limitation, under indemnification agreements, employment agreements and retention agreements (including, without limitation, as set forth in the defense Severance Side Letter) and in respect of such Claim). If the Company chooses to defend any Claimthose individuals who are on disability leave, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records parental leave or other documents within his control, permitted absence.
(6) The provisions of this Section 4.9 shall survive completion of the Arrangement and continue in full force and effect for which a period of six (6) years following the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxyEffective Date.
Appears in 1 contract
Insurance and Indemnification. (a) The Company A. All insurance policies obtained or maintained by Sublicensee will by endorsement specifically name as additional insureds Licensor, any affiliate of Licensor designated by Licensor, and their employees. B. Sublicensee will, and hereby acknowledges its indemnification obligations to the Seller under the Companydoes, indemnify and, at Licensor’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreementoption, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments defend Licensor and its intention to honor such obligations.
(b) For ten years affiliates, their officers, directors, agents and employees, and their respective successors and assigns, from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all damages, claims, demands, suits, judgments, losses, liabilities, damages, judgments, fines or expenses (including reasonable attorneys’ fees and expenseslitigation costs) incurred by Seller relating to or arising out of any claimnature whatsoever (including, demandbut not limited to, asserted liabilitylibel, suit slander, disparagement, defamation, copyright infringement, trademark infringement, patent infringement, trade secret infringement, invasion of privacy or proceeding of any kind (anypublicity rights, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart piracy and/or plagiarism arising from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to any materials prepared by Sublicensee in connection with the Seller’s service as a director provision of the Company. The Company may elect to compromise Services under this Sublicense Agreement, violation of consumer protection rules, or defendany offerings of Sublicensee not consistent with this Sublicense Agreement or applicable law), at its own expense and by its own counsel, any Claim if arising directly or indirectly from or out of: (i) the Company expressly agrees in writing to the Seller thatany act, as between the twoerror or omission of Sublicensee or its directors, the Company is solely obligated to satisfy and discharge the Claiminvitees or employees, agents, or contractors; and/or (ii) the Company makes reasonably adequate provision to satisfy the Seller any occupational injury or illness sustained by any employees, agents, or contractors of Sublicensee in furtherance of the Company’s ability to satisfy and discharge the claim, and Services hereunder; and/or (iii) any failure of Sublicensee to perform the Claim involves solely monetary damages Services hereunder in accordance with the highest generally accepted professional standards; and/or (collectively, the “Litigation Conditions”); provided, however, that if the parties iv) any breach of Sublicensee’s representations as set forth herein or in any action shall include both other agreement related to the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because provision of the availability Services; and/or (v) any other failure of different Sublicensee to comply with the obligation on its part to be performed hereunder or additional defenses in any other agreement related to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense provision of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them availableServices. The Company will be under no obligation indemnification contained herein shall extend to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller claims occurring after this Sublicense Agreement has breached terminated as well as while this Sublicense Agreement or the Irrevocable Proxyis in force.
Appears in 1 contract
Samples: License, Services and Development Agreement (Marriott Vacations Worldwide Corp)
Insurance and Indemnification. 9.1 YMB USA and AAIPharma shall each maintain, at its sale cost and expense, insurance coverage with a reputable insurer (which shall be either occurrence based or claims made coverage) in an amount usual and customary for companies engaged in activities as contemplated by this Agreement. All such insurance shall be in place before the first patient is enrolled in the Study. Each shall designate the other party as an additional insured on products and professional liability policies, and an endorsement shall be made on each such policy prohibiting the insurer from cancelling the policy for any reason or substantially modifying its terms without first giving the other party at least thirty (30) days written notice of its intention to do so.
9.2 If either party maintains it claims-made policy and this Agreement expires or terminates for any reason, then that party shall either: 1) continue to maintain the same or higher coverage with an insurance carrier for a period of two (2) years thereafter; or 2) purchase "Tail Coverage" effective until the second (2nd) anniversary date of the expiration or termination of this Agreement; or 3) obtain and maintain "Prior Acts" coverage equivalent in time and coverage as the "Tail Coverage" described herein.
9.3 Upon request by either party, the other party shall provide evidence of that party's compliance with this Section 9.1 and/or 9.2.
9.4 AAIPharma agrees to defend, indemnify, save and hold harmless YMB USA and its parent, subsidiaries and affiliates and their respective directors, officers, employees and agents (the "YMB USA Indemnities") from and against any third party claims, demands, suits, actions, causes of action, losses, damages, fines and liabilities, including reasonable legal fees and disbursements (the "Claims") arising out of or in connection with or attributable to: (a) The Company hereby acknowledges its indemnification obligations AAIPharma's wilful failure to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity comply with this Agreement, dated as of January 1, 2000, by Work Order or Protocol and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
any amendments thereto; (b) For ten years from and after the Closing Date, the Company shall maintain AAIPharma's gross negligence or willful misconduct in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as performance of the Closing DateServices; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Dateviolations of applicable Laws, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts GLPs or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
GCPs; and/or (d) The Company AAIPharma's submission of false or incorrect data and information to YMB USA; except to the extent any of the Claims arise from the gross negligence or wilful misconduct of YMB USA. AAIPharma agrees to pay the reasonable costs and damages arising from such Claims, after exhaustion of all reasonable appeals, provided that YMB USA provides AAIPharma with written notice of the Claims within five business (5) days of the date YMB USA receives notice of the Claim and YMB USA provides AAIPharma with reasonable information and assistance required to defend the Claim. AAIPharma shall have the sale authority to defend and/or settle the Claim, provided that AAIPharma may not settle a Claim that includes an admission of liability on the part of YMB USA without YMB USA's prior written consent.
9.5 YMB USA agrees to defend, indemnify, save and hold harmless AAIPharma and defend its parent, subsidiaries and affiliates and their respective directors, officers, employees and agents (the Seller "AAIPharma Indemnities") from and against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or Claims arising out of or in connection with or attributable to: (a) the research (including the ethical review of the Protocol and related materials), development, manufacture, distribution, use, sale or other disposition of the Test Materials by YMB USA, or any claimdistributor, demandcollaborator, asserted liabilitycustomer, suit sublicense, representative or proceeding agent of YMB USA; (b) an infringement of any kind third party's patent rights or unauthorized use or misappropriation of its intellectual property pertaining to the Test Materials; and/or (anyc) YMB USA's gross negligence or willful misconduct in connection with this Agreement; (d) YMB USA’s failure to comply with this Agreement, a “Claim”Work Order or Protocol and any amendments thereto; or (e) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the CompanyYMB USA’s repurchase use of the Shares and data or other information generated as a result of the Options. This indemnification obligation is separate and apart services; except to the extent of any of the Claims arise from the obligations referred gross negligence or wilful misconduct of AAIPharma. YMB USA agrees to in pay the above paragraphs reasonable costs and damages arising from such Claims, after exhaustion of this Section 15 and shall apply to any and all such Claims whether or not arising out ofreasonable appeals, based upon or related to the Seller’s service as a director provided that AAIPharma has given YMB USA written notice of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if Claims within five business (i5) days of the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge date AAIPharma receives notice of the Claim, (ii) and AAIPharma has provided information and reasonable assistance required to defend the Company makes reasonably adequate provision Claim. YMB USA shall have the sole authority to satisfy the Seller of the Company’s ability to satisfy and discharge defend and/or settle the claim, and (iii) provided that YMB USA may not settle a claim that includes all admission of liability on the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict part of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxyAAIPharma without AAIPharma's prior written consent.
Appears in 1 contract
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and Bank shall permit Seller to use commercially reasonable efforts to extend the Seller, whereby discovery period of its directors’ and officers’ liability insurance for a period of up to 36 months with respect to all matters arising from facts or events which occurred before the Company has agreed Effective Time for which Seller would have had an obligation to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Dateofficers; provided, however, that the total costs to Seller, Company may amend and Bank of the premiums for such provisions so long coverage shall not exceed an annual amount which exceeds 125% of the current annual amount expended by Seller (the “Insurance Amount”). If Company is unable to maintain or obtain the insurance called for by this Section 5.8 as any such amendment does not materially and adversely affect a result of the Seller.
(c) For ten years from and after the Closing Datepreceding provision, the Company shall maintain in effect use commercially reasonable efforts to obtain as much comparable insurance as is available for the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels Insurance Amount with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director Effective Time of the Merger by such directors and officers in their capacities as such. If Company (provided shall consolidate with or merge into any other entity and shall not be the continuing or surviving entity of such consolidation or merger or shall transfer all or substantially all of its assets to any other entity, then and in each case, proper provision shall be made so that the successors and assigns of Company may substitute therefor policies of at least shall assume the same coverage and amounts containing terms and conditions which are, obligations set forth in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)this Section 5.8.
(db) The For a period of 36 months after the Effective Time, Company shall, and shall indemnifycause its subsidiaries to, hold harmless maintain and defend preserve the rights to indemnification of officers and directors provided for in the Charter Documents of Seller against any as in effect on the date hereof with respect to indemnification for liabilities and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or claims arising out of any claimacts, demandomissions, asserted liabilityevents, suit matters or proceeding of any kind (anycircumstances occurring or existing prior to the Effective Time, a “Claim”) with respect to this Agreement or including, without limitation, the Irrevocable Proxy or Bank Merger and the other transactions contemplated hereby and therebyby this Agreement, including without limitation to the Company’s repurchase extent such rights to indemnification are not in excess of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs that permitted by applicable state or federal laws or regulatory authorities.
(c) The provisions of this Section 15 are intended to be for the benefit of, and shall apply be enforceable by, each director or officer of Seller and his or her heirs and representatives. There shall be no duplication of benefits pursuant to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if Section 5.8 (ia) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”b); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.
Appears in 1 contract
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Effective Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” policies of directors’ and officers’ liability insurance provided that the total cost of such tail policies of directors’ and officers’ liability insurance shall not exceed 200% of the current annual aggregate premium for directors’ and officers’ liability insurance providing protection no less favourable in the aggregate to the protection provided by the policies maintained by Company which are in effect immediately prior to the Company at not less than current levels with Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the Seller’s resignation as Effective Date, in each case for a director claims reporting or discovery period of up to six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time and Newmarket will cause Company (to maintain such tail policies in effect without any reduction in scope or coverage. In addition, if deemed advisable or necessary by Newmarket, Newmarket shall, prior to the Effective Date, purchase customary “tail” policies of directors’ and officers’ liability insurance provided that the Company may substitute therefor total cost of such tail policies of at least directors’ and officers’ liability insurance shall not exceed 200% of the same coverage current annual aggregate premium for directors’ and amounts containing terms officers’ liability insurance providing protection no less favourable in the aggregate to the protection provided by the policies maintained by Newmarket which are in effect immediately prior to the Effective Date and conditions providing protection in respect of claims arising from facts or events which areoccurred on or prior to the Effective Date, in each case for a claims reporting or discovery period of up to six (6) years from and after the aggregate, no less advantageous Effective Time with respect to any claim related to any period of time at or prior to the insured, so long as the substitute insurer Effective Time and Newmarket will maintain such tail policies in effect without any reduction in scope or carrier has a Best’s rating that is no lower than AX)coverage.
(db) Company agrees that it shall honour all rights to indemnification or exculpation now existing in favour of present and former officers and directors of Newmarket and acknowledges that such rights shall survive the completion of the Plan of Arrangement and shall continue in full force and effect for a period of not less than six (6) years from the Effective Date.
(c) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs provisions of this Section 15 7.5 are intended for the benefit of, and shall apply to be enforceable by, each insured or indemnified person, his or her heirs, executors, administrators and other legal representatives and, for such purpose, Company and/or Newmarket, as applicable, (including any surviving corporation or entity) hereby confirms that it is acting as agent and all such Claims whether or not arising out oftrustee on their behalf. Furthermore, based upon or related to this Section 7.5 shall survive the Seller’s service termination of this Agreement as a director result of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller occurrence of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has Effective Time for a conflict period of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxysix years.
Appears in 1 contract
Insurance and Indemnification. (ai) The Company hereby acknowledges its indemnification obligations After the Effective Time and for six years thereafter (or such later time as to which the Seller under statute of limitations shall have been extended by action of the Company’s Certificate Surviving Corporation), Purchaser shall, and shall cause the Surviving Corporation to, indemnify, defend and hold harmless the present and former officers, directors, employees and agents of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Sellerits subsidiaries (each an "Indemnified Party") against all losses, whereby the Company has agreed to indemnify the Seller in his capacity as a director claims, damages or liabilities arising out of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts actions or omissions occurring on or prior to the Seller’s resignation as a director of the Company Effective Time (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which areincluding, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or without limitation the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of by this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related Agreement) to the Seller’s service as a director full extent permitted or required under Delaware law and by Articles Seventh and Eighth of the Company. The Company may elect to compromise or defend, 's Certificate of Incorporation as in effect at its own expense the date hereof (which Articles Seventh and by its own counsel, any Claim if (i) Eighth shall be included in the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller Certificate of Incorporation of the Company’s ability Surviving Corporation and shall not be amended to satisfy and discharge adversely affect such indemnity for the claimsix year period), and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict including provisions relating to advances of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate expenses incurred in the defense of such any action on his behalfor suit, at provided that any determination required to be made with respect to whether an Indemnified Party's conduct complies with the expense standards set forth under Delaware law and the Company's Certificate of Incorporation shall be made by independent counsel mutually selected by the Indemnified Party and the Surviving Corporation. At the Effective Time Purchaser shall cause the Surviving Corporation to purchase a non-cancelable extension of the Company; 's existing directors' and provided furtherofficers' liability insurance covering parties who are currently covered by such policy for a period of five years after the Effective Time in respect of acts or omissions occurring prior to the Effective Time on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date hereof.
(ii) If the Surviving Corporation or any of its successors or assigns (x) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (y) transfers all or substantially all of its properties and assets to any person, howeverthen and in each such case, proper provisions shall be made so that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company successors and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature assigns of the Claim so requires) notify Surviving Corporation assume the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, obligations set forth in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expensethis Section 6.3(f). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Omnilynx Communications Corp)
Insurance and Indemnification. (a1) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Effective Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification ofPhivida may, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provideddiscretion, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” policies of directors’ and officers’ liability insurance providing protection no less favourable in the aggregate to the protection provided by the policies maintained by Xxxxxxx and its Subsidiaries which are in effect immediately prior to the Company at not less than current levels with Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the Seller’s resignation as a director of Effective Date and Choom shall, or shall cause Phivida and its Subsidiaries to maintain such tail policies in effect without any reduction in scope or coverage for two (2) years from the Company (Effective Date; provided that the Company may substitute therefor policies Choom shall not be required to pay any amounts in respect of at least the same such coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous prior to the insured, so long as Effective Time and provided further that the substitute insurer cost of such policies shall not exceed 300% of Phivida’s current annual aggregate premium for policies currently maintained by Phivida or carrier has a Best’s rating that is no lower than AX)its Subsidiaries.
(d2) The Company shall indemnifyChoom shall, hold harmless following the Effective Date, cause Phivida to honour all rights to indemnification or exculpation now existing in favour of present and defend the Seller against any former employees, officers and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees directors of Phivida and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related its Subsidiaries to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if extent that they are (i) included in the Company expressly agrees in writing to the Seller thatConstating Documents of Phivida or any of its Subsidiaries, as between the two, the Company is solely obligated to satisfy and discharge the Claim, or (ii) the Company makes reasonably adequate provision to satisfy the Seller disclosed in Section 4.7(2) of the Company’s ability to satisfy and discharge the claimPhivida Disclosure Letter, and acknowledges that such rights under both (iiii) and (ii) shall survive the Claim involves solely monetary damages completion of the Plan of Arrangement and shall continue in full force and effect in accordance with their terms for a period of not less than six (collectively6) years from the Effective Date.
(3) If Phivida or any of its Subsidiaries or any of their respective successors or assigns
(i) consolidates with or merges into any other Person and is not a continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, Choom shall ensure that any such successor or assign (including, as applicable, any acquirer of substantially all of the “Litigation Conditions”properties and assets of Phivida or its Subsidiaries) assumes all of the obligations set forth in this Section 4.7.
(4) Choom shall act as agent and trustee of the benefits of the foregoing for the current and former directors and officers of Phivida for the purpose of Section 4.7(2); provided, however, that if . This Section 4.7 shall survive the parties in any action shall include both the Company execution and delivery of this Agreement and the Seller, completion of the Arrangement and the Seller shall have reasonably concluded that counsel selected be enforceable against Choom by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate Persons described in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expenseSection 4.7(2). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.
Appears in 1 contract
Samples: Arrangement Agreement
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company Partnership Entities and the SellerPurchaser covenant and agree that the Partnership Entities will be entitled to secure directors’ and officers’ liability insurance coverage for the current and former directors, whereby the Company has agreed to indemnify the Seller in his capacity as a director and officers of the CompanyPartnership Entities and the Partnership Subsidiaries on a seven year “trailing” or “run-off” basis, provided that the aggregate cost therefor does not exceed 300% of the annual premiums currently in effect. The Company hereby confirms its obligations If the Partnership Entities elect not to subscribe to such a policy for any reason, then the Seller under such instruments Purchaser covenants and its intention to honor such obligations.
(b) For ten agrees that, for not less than seven years from and after the Closing DateEffective Time, the Company it shall maintain insurance coverage substantially equivalent to that in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect under the current policies of the directors’ and officers’ liability insurance maintained by or on behalf of or for the Company at not benefit of the Partnership Entities or any of the Partnership Subsidiaries which is no less than current levels advantageous, and with no gaps or lapses in coverage with respect to acts or omissions matters occurring on or prior to or on the Seller’s resignation as a director of the Company (Effective Time, provided that the Company may substitute aggregate cost therefor policies does not exceed 300% of at least the same coverage annual premiums currently in effect.
(b) The Partnership Entities and amounts containing terms the Purchaser covenant and conditions which areagree that all rights to indemnification, exculpation, limitation of liability or expenses reimbursement now existing (i) in favour of present and former officers and directors of the aggregatePartnership Entities and the Partnership Subsidiaries, no less advantageous and (ii) pursuant to the insuredPartnership Agreement, so long shall survive the Arrangement and shall continue in full force and effect.
(c) The provisions of Sections 4.16(a), (b) and (c) are intended for the benefit of the applicable third parties not party to this Agreement, and shall be enforceable by each of such Persons and his or her heirs, executors administrators and other legal representatives and shall not be terminated, modified or waived in such a manner as to adversely affect any such Person, it being expressly agreed that the substitute insurer or carrier has a Best’s rating that is no lower than AXPersons to whom Sections 4.16(a), (b) and (c) apply shall be third party beneficiaries of, and entitled to directly enforce, this Section 4.16. In addition, GP shall obtain and hold the rights and benefits of Sections 4.16(a), (b) and (c) for itself and in trust for and on behalf of such third parties and GP hereby irrevocably declares such trust and covenants and agrees (for itself and its successors and assigns) to accept such trust and to hold the benefit of and enforce performance of the covenants herein contained on behalf of such third parties.
(d) The Company Corporation and the Purchaser covenant and agree that the Corporation will be entitled to secure directors’ and officers’ liability insurance coverage for the current and former directors, and officers of the Corporation on a six year “trailing” or “run-off” basis provided that the aggregate cost therefor does not exceed 300% of the annual premiums currently in effect. If the Corporation elects not to subscribe to such a policy for any reason, then the Purchaser covenants and agrees that, for not less than six years from the Effective Time, it shall indemnifymaintain insurance coverage substantially equivalent to that in effect under the current policies of the directors’ and officers’ liability insurance maintained by or on behalf of or for the benefit of the Corporation which is no less advantageous, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to with no gaps or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) lapses in coverage with respect to this Agreement matters occurring prior to or on the Irrevocable Proxy Effective Time.
(e) The Corporation and the Purchaser covenant and agree that all rights to indemnification, exculpation or the transactions contemplated hereby expenses reimbursement now existing in favour of present and thereby, including without limitation the Company’s repurchase former officers and directors of the Shares Corporation shall survive the Arrangement and shall continue in full force and effect.
(f) The provisions of Sections 4.16(d), (e) and (f) are intended for the benefit of all present and former directors, and officers of the Corporation, and shall be enforceable by each of such Persons and his or her heirs, executors administrators and other legal representatives and shall not be terminated, modified or waived in such a manner as to adversely affect any such Person, it being expressly agreed that the Persons to whom Sections 4.16(d), (e) and (f) apply shall be third party beneficiaries of, and entitled to directly enforce, this Section 4.16. In addition, the Corporation shall obtain and hold the rights and benefits of Sections 4.16(d), (e) and (f) for itself and in trust for and on behalf of all present and former directors and officers of the Corporation and the Options. Corporation hereby irrevocably declares such trust and covenants and agrees (for itself and its successors and assigns) to accept such trust and to hold the benefit of and enforce performance of the covenants herein contained on behalf of such present and former directors and officers of the Corporation.
(g) This indemnification obligation is separate Section 4.16 shall survive the Effective Time and apart from the obligations referred to in the above paragraphs any termination of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxyAgreement.
Appears in 1 contract
Insurance and Indemnification. (a1) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Effective Date, the Company Corporation shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” policies of directors’ and officers’ liability insurance providing protection no less favourable in the aggregate to the protection provided by the policies maintained by the Company at not less than current levels with Corporation and its Subsidiaries which are in effect immediately prior to the Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the Seller’s resignation as a director of Effective Date, and the Company Purchaser shall, or shall cause the Corporation and its Subsidiaries to maintain such tail policies in effect without any reduction in scope or coverage for six (6) years from the Effective Date; provided that the Company may substitute therefor policies Purchaser shall not be required to pay any amounts in respect of at least the same such coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous prior to the insured, so long Effective Time; and provided further that the cost of such policies shall not exceed 400% of the aggregate premium for policies currently maintained by the Corporation and its Subsidiaries as set forth in Section 4.10 of the substitute insurer or carrier has a Best’s rating that is no lower than AX)Corporation Disclosure Letter.
(d2) The Company Purchaser shall indemnifycause the Corporation and its Subsidiaries to honour all rights to indemnification or exculpation in favour of present and former Corporation Employees, hold harmless officers and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase directors of the Shares Corporation and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related its Subsidiaries to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if extent that they are (i) the Company expressly agrees now existing and contained in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, their Constating Documents or (ii) disclosed in the Company makes reasonably adequate provision Corporation Disclosure Letter, and acknowledges that such rights, to satisfy the Seller extent that they are contained in their Constating Documents or disclosed in the Corporation Disclosure Letter, shall not be amended or rescinded in a manner adverse to the applicable Corporation Employee, officer or director and shall survive the completion of the Company’s ability Plan of Arrangement and shall continue in full force and effect in accordance with their terms for a period of not less than six (6) years from the Effective Date.
(3) If the Purchaser, the Corporation or any of its Subsidiaries or any of their respective successors or assigns following the Effective Time (a) consolidates or amalgamates with or merges or liquidates into any other Person and is not a continuing or surviving corporation or entity of such consolidation, amalgamation, merger or liquidation, or (b) transfers all or substantially all of its properties and assets to satisfy any Person, proper arrangements shall be made so as to ensure that any such successor or assign (including, as applicable, any acquirer of substantially all of the properties and discharge assets of the claimPurchaser, the Corporation or any of its Subsidiaries) assumes all of the obligations set forth in this Section 4.10. This Section 4.10 is in addition to and not in substitution of, any other rights of Indemnified Persons under contract or otherwise.
(4) This Section 4.10 shall survive the consummation of the Arrangement and is intended to be for the benefit of, and (iii) the Claim involves solely monetary damages (collectivelyshall be enforceable by, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company present and the Seller, former directors and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because officers of the availability of different or additional defenses to Corporation and its Subsidiaries and their respective heirs, executors, administrators and personal representatives (the SellerIndemnified Persons) and shall be binding on the Purchaser, the Seller shall have Corporation, its Subsidiaries and their respective successors and assigns, and, for such purpose, the right to select separate counsel to participate in the defense of such action Corporation hereby confirms that it is acting as agent on his behalf, at the expense behalf of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxyIndemnified Persons.
Appears in 1 contract
Samples: Arrangement Agreement
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Effective Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” policies of directors’ and officers’ liability insurance maintained by providing protection (the Company at not less than current levels with nature and scope of which shall be in the discretion of the Company) in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the SellerEffective Date and Parent shall, or shall cause the Company and the Company Subsidiaries to maintain such tail policies in effect without any reduction in scope or coverage in accordance with the terms of such "tail" policies for three years from the Effective Date; provided that Parent shall not be required to pay any amounts in respect of such coverage prior to the Effective Time and provided further that the cost of such policies shall not exceed 300% of the Company’s resignation current annual aggregate premium for policies currently maintained by the Company or the Company Subsidiaries without the prior written consent of Parent. From and after the Effective Time, Parent and the Company, as a director applicable, agrees not to take any action to terminate such directors’ and officers’ liability insurance or materially adversely affect the rights of the Company’s present and former directors and officers thereunder.
(b) From and after the Effective Time, Parent shall cause the Company and the Company Subsidiaries to honour all rights to indemnification or exculpation existing as of the date hereof in favour of present and former employees, officers and directors of the Company and the Company Subsidiaries, to the extent that they are: (provided i) included in the Constating Documents of the Company or any of the Company Subsidiaries; or (ii) as disclosed in Section 4.04(b) of the Company Disclosure Schedule, and acknowledges that such rights shall survive the completion of the Plan of Arrangement and shall continue in full force and effect in accordance with their terms for a period of not less than three years from the Effective Date.
(c) If any of the Company, the Company Subsidiaries, Parent or Purchaser or any of their respective successors or assigns shall (a) amalgamate, consolidate with or merge or wind-up into any other Person and shall not be the continuing or surviving corporation or entity; or (b) transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns (including, as applicable, any acquirer of all or substantially all of the properties or assets of the Company, the Company may substitute therefor policies Subsidiaries, Parent or Purchaser) and transferees of at least the same coverage and amounts containing terms and conditions which areCompany, in the aggregateCompany Subsidiaries, no less advantageous to the insured, so long Parent or Purchaser as the substitute insurer or carrier has case may be, shall assume all of the obligations set forth in this Section 4.04 for a Best’s rating period expiring not earlier than the date that is no lower than AX)three years from the Effective Date.
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of rights under this Section 15 4.04 are intended for the benefit of, and shall apply to any be enforceable by, each Person indemnified under this Section 4.04 and all his/her heirs, executors, administrators and personal representatives and, for such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the twopurpose, the Company hereby confirms that it is solely obligated to satisfy acting as agent and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action trustee on his their behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.
Appears in 1 contract
Insurance and Indemnification. (a) The Company hereby acknowledges its Parent agrees that ----------------------------- all rights to indemnification obligations and advancement of expenses for acts or omissions occurring prior to the Seller under Effective Time (including for acts or omissions of directors occurring prior to the Company’s Certificate Effective Time in connection with the adoption of Incorporation this Agreement and the approval of the Transactions) now existing in favor of the current or Bylaws and that certain Indemnity Agreement, dated as former directors or officers of January 1, 2000, by and between the Company and the SellerCompany Subsidiaries, whereby and their respective heirs and representatives (each an "Indemnified Party"), provided in the Company has agreed to indemnify the Seller in his capacity as a director Organizational Documents or ------------------ Subsidiary Organizational Documents and any indemnification agreements or arrangements of the Company. The Company hereby confirms its obligations and the Company Subsidiaries or as to the Seller under such instruments fullest extent permitted by law shall survive the Merger and its intention shall continue in full force and effect in accordance with their terms for a period of six years following the Effective Time. Parent shall cause to honor such obligations.
(b) For ten years from be included and after the Closing Date, the Company shall maintain to be maintained in effect in the current Surviving Corporation's (or any successor's) certificate of incorporation and by-laws, during such six-year period following the Effective Time, provisions regarding limitation elimination of liability of directors, indemnification of officers and directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as Indemnified Parties than the substitute insurer or carrier has a Best’s rating that is no lower than AX)corresponding provisions contained in the Company Organizational Documents.
(db) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement Parent or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation Surviving Corporation shall maintain the Company’s repurchase 's existing officers' and directors' liability insurance ("D&O --- Insurance") for a period of not less than three years after the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”)Effective Time; --------- provided, however, that Parent may substitute therefor policies of substantially -------- ------- equivalent coverage and amounts containing terms no less favorable to such former directors or officers; provided further, -------- ------- that if the parties existing D&O Insurance expires or is terminated or cancelled during such period, then Parent or the Surviving Corporation shall use reasonable best efforts to obtain substantially similar D&O Insurance or, if not obtainable, Parent shall obtain as much D&O Insurance as can be obtained for an annual premium not in any action shall include both excess of 200% of the Company and average of the Seller, and the Seller shall have reasonably concluded that counsel selected premiums paid by the Company has a conflict of interest because of in 1998, 1999 and 2000 for D&O Insurance (the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the CompanyAverage Premium"); and provided --------------- -------- further, however, that the Company in no event shall forfeit the right Parent be required to control the defense or settlement pay annual ------- premiums for insurance under this Section 7.6(b) in excess of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature 200% of the Claim so requiresAverage Premium; and provided, further, that if Parent or the Surviving ------- Corporation is unable to obtain the amount of insurance required by this Section 7.6(b) notify for such annual premium, Parent or the Seller Surviving Corporation shall obtain as much insurance as can be obtained for an annual premium not in excess of its intent to do so, and the Seller shall reasonably cooperate, at the expense 200% of the Company, in Average Premium. The premium for D&O Insurance for the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense 12-month period ending May 2002 is set forth on Section 7.6(b) of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxyDisclosure Schedule.
Appears in 1 contract
Samples: Merger Agreement (Steelcase Inc)
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Prior to the Seller under Effective Time, the Company’s Certificate of Incorporation Company shall have obtained a prepaid policy or Bylaws and that certain Indemnity Agreementpolicies (i.e., dated a “tail” insurance policy), which shall be effective as of January 1the Effective Time, 2000with a claims period of six (6) years from and after the Effective Time, on term acceptable to Parent with respect to matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement and the transactions contemplated hereby). Neither Parent nor the Surviving Corporation shall terminate the insurance policy referred to in the preceding sentence prior to the expiration of the term of such policy. Any payments with respect to such tail coverage that are not made by and between the Company and prior to or concurrent with the SellerClosing, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligationsshall be deemed Merger Expenses.
(b) For ten years from From and after the Closing DateEffective Time and ending on the sixth anniversary of the Effective Time, the Surviving Company shall maintain indemnify (including advancement of expenses) and hold harmless all past and present directors and officers of the Company, solely in their respective capacities as such (collectively, the “D&O Indemnitees”) with respect to all acts or omissions by them in their capacities as such at any time prior to the Effective Time, to the extent (a) required by the Charter Documents as in effect on the current provisions regarding limitation date of liability this Agreement, (b) required by any employment or indemnification agreement between the Company and such director or officer as in effect on the date of directors this Agreement and indemnification ofas set forth on Schedule 5.10(b), as amended pursuant to the release in the Agreement and Joinder, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date(c) permitted under applicable Law; provided, however, that such indemnification shall be limited to the extent of remaining available coverage under the “tail” insurance policy contemplated under Section 5.10(a) of this Agreement, notwithstanding anything to the contrary in the Company’s Charter Documents or any other agreement or understanding between the Company may amend and such Persons. The D&O Indemnitees to whom this Section 5.10 applies shall be third party beneficiaries of this Section 5.10. The provisions so long as any of this Section 5.10 are intended to be for the benefit of each D&O Indemnitee and his or her heirs and representatives and, in the case of directors serving on behalf of institutional investors or other Persons, such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts institutional investors or omissions occurring on or prior other Persons to the Seller’s resignation as a director extent such institutional investor or other Persons are covered by any applicable indemnification agreement and shall be enforceable by, all past and present officers and directors of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms his or her heirs and conditions which arerepresentatives and, in the aggregatecase of directors serving on behalf of institutional investors or other Persons, no less advantageous such institutional investors or other Persons to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all extent such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records institutional investor or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for Persons are covered by any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxyapplicable indemnification agreement.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Juno Therapeutics, Inc.)
Insurance and Indemnification. (ai) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity Surviving Corporation will provide each individual who served as a director or officer of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or any time prior to the Seller’s resignation as Effective Time with liability insurance for a director period of six years after the Effective Time no less favorable in coverage and amount than any applicable insurance of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous effect immediately prior to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”)Effective Time; provided, however, that if the parties in any action shall include both the Company and the Sellerexisting liability insurance expires, and the Seller shall have reasonably concluded that counsel selected or is terminated or canceled by the Company has a conflict of interest because of the availability of different or additional defenses to the Sellerinsurance carrier during such six-year period, the Seller shall have Surviving Corporation will use its reasonable best efforts to obtain comparable insurance for the right to select separate counsel to participate in the defense remainder of such action period on his behalf, at the expense of the Companya commercially reasonable basis; and provided further, however, that in the event any claim or claims are asserted within such period, all rights to indemnification in respect of such claim or claims shall continue until the final disposition thereof;
(ii) After the Effective Time, Surviving Corporation (A) will not take or permit to be taken any action to alter or impair any exculpatory or indemnification provisions now existing in the certificate of incorporation, by-laws or indemnification and employment agreements of the Company or any of its Subsidiaries for the benefit of any individual who served as a director or officer of the Company or any of its Subsidiaries (an "Indemnified Party") at any time prior to the Effective Time (except as may be required by applicable law), and (B) shall forfeit cause the right Surviving Corporation to control honor and fulfill such provisions until the defense date which is six years from the Effective Time (except as may be required by applicable law); provided, however, that in the event any claim or settlement claims are asserted within such period, all rights to indemnification in respect of such claim or claims shall continue until the final disposition thereof.
(iii) To the extent clauses (i) and (ii) above shall not serve to indemnify and hold harmless an Indemnified Party, Surviving Corporation, subject to the terms and conditions of this clause (iii), will indemnify, for a period of six years from the Effective Time, to the fullest extent permitted under applicable law, each Indemnified Party from and against any and all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, expenses and fees, including all court costs and reasonable attorneys' fees and expenses, resulting from, arising out of, relating to or caused by this Agreement or any of the transactions contemplated herein; provided, however, that in the event any claim or claims are asserted or threatened within such six-year period, all rights to indemnification in respect of any such claim ifor claims shall continue until final disposition of any and all such claims. Any Indemnified Party wishing to claim indemnification under this clause (iii), at notwithstanding anything to the contrary in the provisions set forth in the Company's or the Surviving Corporation's certificate of incorporation, by-laws or other agreements respecting indemnification of directors or officers, upon learning of any time such claim, action, suit, proceeding or investigation, shall promptly notify Surviving Corporation thereof, but the failure to so notify shall not relieve Surviving Corporation of any liability it may have to such Indemnified Party if such failure does not materially prejudice Surviving Corporation. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after assuming the Effective Time), (A) Acquiror or the Surviving Corporation shall have the right following the Effective Time to assume the defense thereof and Surviving Corporation shall not be liable to such Indemnified Parties for any legal expenses of other counsel or settlement any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Acquiror or the Company and Surviving Corporation fails to assume such defense or counsel for the Claim no longer satisfy Indemnified Party advises that there are issues which raise conflicts of interest between Acquiror or the Litigation Conditions. Subject to Surviving Corporation, on the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do soone hand, and the Seller shall reasonably cooperateIndemnified Parties, at on the expense of other hand, the Indemnified Parties may retain counsel satisfactory to them, and the Company, in Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the compromise ofIndemnified Parties promptly as statements therefor are received; provided, or defense againsthowever, such Claim (it being understood the Seller that Surviving Corporation shall be entitled obligated to participate pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such defense at its own expense). If Indemnified Parties would present such counsel with a conflict of interest, in which case Surviving Corporation need only pay for separate counsel to the Company elects not extent necessary to compromise or defend resolve such conflict; (B) the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, Indemnified Parties will reasonably cooperate in the defense of any such Claim)matter; and (C) Surviving Corporation shall not be liable for any settlement effectuated without its prior written consent, which consent shall not be unreasonably withheld or delayed. If Surviving Corporation shall not settle any action or claim identified in this Section 5(j)(iii) in any manner that would impose any liability or penalty on an Indemnified Party not paid by Acquiror or the Company chooses Surviving Corporation without such Indemnified Party's prior written consent, which consent shall not be unreasonably withheld or delayed.
(iv) Notwithstanding anything contained in clause (iii) above, Surviving Corporation shall not have any obligation hereunder to defend any ClaimIndemnified Party (A) if the indemnification of such Indemnified Party by Surviving Corporation in the manner contemplated hereby is prohibited by applicable law, (B) the Seller shall, subject to receipt conduct of a reasonable confidentiality agreement, make available the Indemnified Party relating to the Company any books, records or other documents within his control, matter for which indemnification is sought involved bad faith or willful misconduct of such Indemnified Party, or (C) with respect to actions taken by any such Indemnified Party in his or its individual capacity, including, without limitations, with respect to any matters relating, directly or indirectly, to the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses purchase, sale or trading of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim securities issued by the Company that other than a tender or sale pursuant to a stock tender agreement or (D) if such Indemnified Party shall have breached its obligation to cooperate with Surviving Corporation in the Seller has breached this Agreement defense of any claim in respect of which indemnification is sought and such breach (x) materially and adversely affects Surviving Corporation's defense of such claim or (y) will materially and adversely affect Surviving Corporation's defense of such claim if such breach is not cured within ten days after notice of such breach is delivered to the Irrevocable ProxyIndemnified Party and such breach is not cured during such period.
Appears in 1 contract
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Prior to the Seller under Effective Date, the Company’s Certificate Company shall purchase customary "tail" policies of Incorporation or Bylaws directors' and that certain Indemnity Agreement, dated as of January 1, 2000, officers' liability insurance providing protection no less favourable in the aggregate to the protection provided by and between the policies maintained by the Company and its Subsidiaries which are in effect immediately prior to the SellerEffective Date and providing protection in respect of claims arising from facts or events which occurred on or prior to the Effective Date and Hudbay will, whereby or will cause the Company has agreed and its Subsidiaries to, maintain such tail policies in effect without any reduction in scope or coverage for six years from the Effective Date; provided that (i) Hudbay shall not be required to indemnify pay any amounts in respect of such coverage prior to the Seller in his capacity as a director Effective Time, and (ii) the cost of such policy shall not exceed 300% of the Company. The 's current annual aggregate premium for policies currently maintained by the Company hereby confirms or its obligations Subsidiaries (such amount, the "Base Premium"); provided further that if such insurance can only be obtained at a premium in excess of the Base Premium, the Company may purchase such insurance at such excess premium only on commercially reasonable terms and market-based pricing following consultation in good faith with Hudbay and Hudbay's consent (not to the Seller under such instruments and its intention to honor such obligationsbe unreasonably withheld, conditioned or delayed).
(b) For ten Xxxxxx agrees that it shall honour all rights to indemnification or exculpation now existing in favour of present and former officers and directors of the Company and its Subsidiaries to the extent that they are disclosed in the Company Disclosure Letter, and acknowledges that such rights, to the extent that they are disclosed in the Company Disclosure Letter, shall survive the completion of the Plan of Arrangement and shall continue in full force and effect for a period of not less than six years from and after the Closing Effective Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, If the Company or Hudbay or any of their respective successors or assigns shall maintain (i) amalgamate, consolidate with or merge or wind-up into any other person and shall not be the continuing or surviving corporation or entity; or (ii) transfer all or substantially all of its properties and assets to any Person, then, and in effect each such case, proper provisions shall be made so that the current policies of directors’ successors and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director assigns and transferees of the Company (provided that or Hudbay, as the case may be, shall assume all of the obligations of the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which areor Hudbay, as applicable, set forth in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)this Section 5.15.
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs provisions of this Section 15 5.15 are intended for the benefit of, and shall apply to any be enforceable by, each insured or indemnified Person, his or her heirs and all his or her legal representatives and, for such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the twopurpose, the Company hereby confirms that it is solely obligated to satisfy and discharge acting as agent on their behalf. Furthermore, this Section 5.15 shall survive the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller termination of this Agreement as a result of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because occurrence of the availability Effective Date for a period of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxysix years.
Appears in 1 contract
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate For a period of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten six years from and after the Closing Dateeffective time of the merger, Helix, as the Company shall maintain surviving corporation in effect the current provisions regarding limitation of liability of directors and indemnification ofmerger has agreed to provide, and Forian has agreed cause Helix to provide, to the fullest extent permitted by applicable law and Helix’s certificate of incorporation and bylaws, indemnification and provide advancement of reasonable expenses to, directors as contained each indemnified party against all losses that are paid in its Certificate settlement of Incorporation and Bylaws as or in connection with any claim based in whole or in part on or arising in whole or in part out of the Closing Date; providedfact that such person was a director or officer of Helix or any Helix subsidiary (or was serving at the request of Helix or any of its subsidiaries as a director, howeverofficer, that employee, or trustee of another person) and pertaining to any matter existing at or before the Company may amend such provisions so long as any such amendment does not materially and adversely affect effective time of the Seller.
(c) For ten merger. In addition, for a period of six years from the effective time of the merger, Helix, as the surviving corporation in the merger has agreed to provide, and after the Closing Date, the Company shall maintain in effect the current policies of directors’ Xxxxxx has agreed cause Helix to provide director’s and officers’ officer’s liability insurance maintained by the Company at not less than current levels with respect to acts claims against such directors and officers arising from facts or omissions occurring on or prior to events that occurred before the Seller’s resignation as a director effective time of the Company (provided that the Company may substitute therefor policies of merger, which insurance shall contain at least the same coverage and amounts containing amounts, and contain terms and conditions which areno less advantageous, as that coverage currently provided by Helix. In no event shall Helix or Forian, however, be required to expend, on an annual basis, more than 300% of the current annual amount expended by Helix to maintain such directors and officers insurance coverage. In lieu of the foregoing, Helix may obtain at or prior to the effective time a six-year “tail” policy under Helix’s existing directors’ and officers’ insurance policy providing equivalent coverage to that described in the preceding sentence if and to the extent that the same may be obtained for an amount that, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase does not exceed 300% of the Shares current annual amount expended by Helix to maintain such directors and officers insurance coverage. See the Options. This indemnification obligation is separate section entitled “Merger Agreement – Indemnification, Exculpation and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action Insurance’’ beginning on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxypage 79.
Appears in 1 contract
Samples: Agreement and Plan of Merger
Insurance and Indemnification. (a1) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Effective Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” policies of directors’ and officers’ liability insurance with a term of not less than six years providing protection no less favourable in the aggregate than the protection provided by the policies maintained by the Company at not less than current levels with which are in effect immediately prior to the Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the SellerEffective Date; provided that the Purchaser will not be required to pay any amounts in respect of such coverage prior to the Effective Time and provided further that the cost of such policies shall not exceed 300% of the Company’s resignation as a director of current annual aggregate premium for policies currently maintained by the Company (provided that which the Company may substitute therefor policies of at least the same coverage represents and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that warrants is no lower than AX$373,685).
(d2) The Company shall, and shall indemnifycause each of its Subsidiaries to, hold harmless honour all rights to indemnification or exculpation now existing in favour of present and defend former employees, officers, managers and directors of the Seller against Company and its Subsidiaries, and such rights shall survive the completion of the Plan of Arrangement and shall continue in full force and effect in accordance with their terms. The provisions of this Section 4.9 shall be binding, jointly and severally, on all successors of the Company.
(3) If the Company or, following the Effective Time, the Purchaser or any of their successors or assigns shall (a) amalgamate, consolidate with or merge or wind-up into any other Person and, if applicable, shall not be the continuing or surviving corporation or entity; or (b) transfer all or substantially all of its properties and all claimsassets to any Person or Persons, lossesthen, liabilitiesand in each such case, damagesproper provisions shall be made so that the successors, judgments, fines (including reasonable attorneys’ fees assigns and expenses) incurred by Seller relating to or arising out transferees of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement the Company or the Irrevocable Proxy or Purchaser, as the case may be, shall assume all of the obligations set forth in this Section 4.9.
(4) The provisions of this Section 4.9 shall survive the consummation of the transactions contemplated hereby by this Agreement and therebyare intended for the benefit of, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any be enforceable by, present and all such Claims whether or not arising out offormer employees, based upon or related to the Seller’s service as a director officers, managers and directors of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Sellerits Subsidiaries, their respective heirs, executors, administrators and the Seller personal representatives and shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action be binding on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, Subsidiaries and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxytheir respective successors and assigns.
Appears in 1 contract
Samples: Arrangement Agreement (Patheon Inc)
Insurance and Indemnification. (a) The Subject to applicable law, for a period of six (6) years following completion of the Term, the Company hereby acknowledges its indemnification obligations will: (i) indemnify Employee and his heirs and representatives to the Seller under extent provided in the Company’s Certificate By-Laws in effect on the date of Incorporation this Agreement and will not amend, reduce or Bylaws and that certain Indemnity Agreement, dated as limit rights of January 1, 2000, by and between indemnity afforded to them or the ability of the Company to indemnify them, not hinder, delay or make more difficult the exercise of such rights of indemnity and (ii) maintain director and officer liability insurance coverage providing Employee with coverage (1) at least as favorable as the Seller, whereby policies in effect immediately prior to the date hereof covering the Company’s directors and officers or (2) as favorable as is available at a cost to the Company has agreed of up to indemnify 125% of the Seller in premiums currently being paid by the Company.
(b) If any claim is (or claims are) made against Employee and his capacity heirs and representatives, including legal counsel, arising from Employee=s services as a director director, officer and employee of the Company, within six (6) years from the expiration of the Term, the provisions of this Paragraph 15 respecting the Company’s By-Laws shall continue in effect until the final disposition of all such claims.
(c) The Company agrees to provide written notice to Employee immediately upon learning of any claim or threatened claim against Employee by any third party relating to or arising out of the business of the Company or Employee’s prior service as a director, officer, employee or controlling shareholder of the Company. The Company hereby confirms its obligations further agrees to the Seller under provide to Employee any complaints and other relevant documentation related to such instruments and its intention to honor claims immediately upon receipt of such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)documentation.
(d) The Company shall indemnify, hold harmless Employee agrees that he will cooperate with and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation assist the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected requested by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in its defense of any action or proceeding against the compromise ofCompany, its directors, officers, employees or defense against, such Claim (it being understood the Seller shall be entitled to participate affiliates arising out of or in any way related to any transactions, events or other matters which occurred during the period of his employment with the Company, to the extent that such defense at its own expense)cooperation and assistance will not impair Employee’s legal rights or remedies or increase the likelihood that Employee will incur any liabilities as a result thereof. If This Agreement shall not preclude Employee from testifying in such action or proceeding. In the event that Employee does cooperate with and assist the Company elects not to compromise in its defenses of such an action or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditionsproceeding, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged agrees to reimburse the Seller the Employee for all reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim incurred by the Company that the Seller has breached this Agreement or the Irrevocable ProxyEmployee in providing such assistance.
Appears in 1 contract
Samples: Employment Contract (Mace Security International Inc)
Insurance and Indemnification. (1) From and after the Effective Time, each of the Parent and the Company agrees that it will indemnify and hold harmless each present and former director and officer (which for the purposes of this Section 4.8, includes all individuals listed under the definition of “Company’s Knowledge”) of the Company (in each case, when acting in such capacity), determined as of the Effective Time (the “Indemnified Persons”), against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Action, arising out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under the CBCA, applicable Law and its Organizational Documents in effect on the date hereof to indemnify such Person (and the Parent or the Company will also advance expenses as incurred to the fullest extent permitted under Law; provided however, that the Person to whom expenses are advanced provides an undertaking to repay such advances if and when a court of competent jurisdiction ultimately determines in a non-appealable ruling that such Person is not entitled to indemnification).
(2) Any Indemnified Person wishing to claim indemnification under paragraph (1) of this Section 4.8, upon learning of any such Action, will promptly notify the Parent thereof, but the failure to so notify will not relieve the Parent or the Company of any liability it may have to such Indemnified Person except to the extent such failure materially prejudices the indemnifying Party. In the event of any such Action (whether arising before or after the Effective Time): (a) The the Parent or the Company hereby acknowledges its indemnification obligations will have the right to assume the Seller under defense thereof, and the Company’s Certificate Parent and the Company will not be liable to such Indemnified Persons for any legal expenses of Incorporation other counsel or Bylaws and any other expenses subsequently incurred by such Indemnified Persons in connection with the defense thereof, except that certain Indemnity Agreement, dated as if the Parent or the Company elects not to assume such defense or counsel for the Indemnified Persons advises in writing that there are conflicts of January 1, 2000, by and interest between the Parent or the Company and the SellerIndemnified Persons, whereby the Indemnified Persons may retain counsel satisfactory to them, and the Parent or the Company has agreed will pay all reasonable documented fees and expenses of such counsel for the Indemnified Persons promptly as statements therefor are received; provided however, that the Parent and the Company will be obligated pursuant to indemnify this paragraph (2) to pay for only one firm of counsel for all Indemnified Persons in any jurisdiction unless the Seller use of one counsel for such Indemnified Persons would present such counsel with a conflict of interest; provided further, that the fewest number of counsels necessary to avoid conflicts of interest will be used; (b) the Indemnified Persons will reasonably cooperate in his capacity as the defense of any such matter; and (c) the Parent and the Company will not be liable for any settlement effected without their prior written consent (not to be unreasonably withheld, delayed or conditioned); and, provided further, that the Parent and the Company will not have any obligation hereunder to any Indemnified Person if and when a director court of competent jurisdiction will ultimately determine, and such determination will have become final, that the Company. The Company indemnification of such Indemnified Person in the manner contemplated hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligationsis prohibited by Law.
(b3) For ten Prior to the Effective Time, the Company will, and if the Company is unable to, the Parent will cause the Company as of the Effective Time to, obtain and fully pay for “tail” insurance policies with a claims period of at least six years from and after the Closing Date, Effective Time from an insurance carrier with the Company shall maintain in effect same or better credit rating as the Company’s current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of insurance carrier with respect to directors’ and officers’ liability insurance maintained by and fiduciary liability insurance (collectively, “D&O Insurance”) with benefits and levels of coverage at least as favourable as the Company at not less than current levels Company’s existing policies with respect to acts matters existing or omissions occurring on at or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines Effective Time (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) in connection with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the twoAgreement, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”Transactions or actions contemplated hereby); provided, provided however, that if in no event will the parties Company expend for such policies a premium amount in any action shall include both excess of 300% of the annual premium currently paid by the Company in respect of its current D&O Insurance coverage. If the Company and the SellerParent for any reason fail to obtain such “tail” insurance policies as of the Effective Time, the Company will, and the Seller shall have reasonably concluded Parent will cause the Company to, continue to maintain in effect for a period of at least six years from and after the Effective Time the D&O Insurance in place as of the date hereof with benefits and levels of coverage at least as favourable as provided in the Company’s existing policies as of the date hereof, or the Company will, and the Parent will cause the Company to, use reasonable commercial efforts to purchase comparable D&O Insurance for such six-year period with benefits and levels of coverage at least as favourable as provided in the Company’s existing policies as of the date hereof; provided further that counsel selected in no event will the Parent or the Company be required to expend for such policies an annual premium amount in excess of 300% of the annual premiums currently paid by the Company has a conflict of interest because of for such insurance; provided further that if the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense annual premiums of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any insurance coverage exceed such claim if, at any time after assuming the defense or settlement thereofamount, the Company and will obtain a policy with the Claim no longer satisfy greatest coverage available for a cost not exceeding such amount.
(4) If the Litigation Conditions. Subject to the foregoing, if Parent or the Company elects or any of their respective successors or assigns: (a) will consolidate with or merge into any other corporation or entity and will not be the continuing or surviving corporation or entity of such consolidation or merger; or (b) will transfer all or substantially all of its properties and assets to compromise any Person, corporation or defend other entity, then, and in each such Claimcase, it shall within 30 days (or sooner, if proper provisions will be made so that the nature successors and assigns of the Claim so requiresParent or the Company will assume all of the obligations set forth in this Section 4.8.
(5) notify The provisions of this Section 4.8 are intended to be for the Seller of its intent to do sobenefit of, and will be enforceable by, each of the Seller shall reasonably cooperate, at Indemnified Persons.
(6) The rights of the expense Indemnified Person under this Section 4.8 are in addition to any rights such Indemnified Person may have under the Organizational Documents of the Company, in the compromise or under any applicable Contracts or Laws, which rights will be honoured by each of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in and not derogated from any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditionsof, the Seller may payParent, compromise or defend such Claim at the expense Purchaser and the Company. Without limiting the generality of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claimforegoing, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available limits and obligations tied to the Company rights set out in this Section 4.8 will not limit or otherwise prejudice any booksrights the Indemnified Person may have under such Organizational Documents, records Contracts or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxyLaws.
Appears in 1 contract
Insurance and Indemnification. (a1) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Effective Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” or “run off” policies of directors’ and officers’ liability insurance from an insurance carrier with the same or better credit rating as the Company’s current insurance carriers, providing protection no less favourable in the aggregate than the protection provided by the policies maintained by the Company at not less than current levels with and its Subsidiaries which are in effect immediately prior to the Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the Seller’s resignation Effective Date and the Purchaser will, or will cause the Company and its Subsidiaries to maintain such tail policies in effect without any reduction in scope or coverage for six years from the Effective Date; provided that the Purchaser will not be required to pay any amounts in respect of such coverage prior to the Effective Time.
(2) From and after the Effective Time, the Purchaser and the Parent shall, and shall cause the Company to, indemnify and hold harmless, to the fullest extent permitted under applicable Law (and to also advance reasonable and documented expenses as a incurred to the fullest extent permitted under applicable Law), each present and former director and officer of the Company (provided that and its Subsidiaries and each present and former designate or nominee of the Company may substitute therefor policies or its Subsidiaries on the board of at least directors (or equivalent body) of the same coverage and amounts containing terms and conditions which areNon-Controlled Entities (each, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(dan “Indemnified Person”) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, claims, damages or liabilities incurred (collectively, “Losses”) incurred by Seller relating to or in connection with any proceeding arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Sellersuch Indemnified Person’s service as a director or officer of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) of its Subsidiaries and/or any of the Company expressly agrees in writing to Non-Controlled Entities or services performed by such persons at the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller request of the Company’s ability , any of its Subsidiaries or any of the Non-Controlled Entities at or prior to satisfy or following the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including the approval or completion of this Agreement and discharge the claim, Arrangement or any of the other transactions contemplated by this Agreement or arising out of or related to this Agreement and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”)transactions contemplated hereby; provided, however, that the Purchaser and the Parent shall not be required to indemnify such Indemnified Person if the parties Losses are a direct result of the actions of the Indemnified Person which did not meet the minimum standards provided for in Section 134 of the OBCA as determined by a court of competent jurisdiction in a non-appealable judgement, which result in the Company not having the means to indemnify such Indemnified Person.
(3) The rights of the Indemnified Persons under this Section 4.12 shall be in addition to any action rights such Indemnified Persons may have under the Company Constating Documents or the constating documents of any of its Subsidiaries and the Non-Controlled Entities, or under any applicable Law or agreement of any Indemnified Person with the Company, any of its Subsidiaries or any of the Non-Controlled Entities. The Purchaser shall, from and after the Effective Time, honour all rights to contractual and statutory indemnification or exculpation now existing in favour of present and former employees, officers and directors of the Company and its Subsidiaries and the Company’s and its Subsidiaries’ designates, nominees and appointees as officers and directors of the Non-Controlled Entities and acknowledges that such rights shall include both survive the completion of the Plan of Arrangement and shall continue in full force and effect in accordance with their terms for a period of not less than six years from the Effective Date.
(4) If any Indemnified Person makes any claim for indemnification or advancement of expenses under this Section 4.12 that is denied by the Company or the Purchaser, and a court of competent jurisdiction determines that the Indemnified Person is entitled to such indemnification, then the Company and the SellerPurchaser or the Parent shall pay such Indemnified Person’s costs and expenses, including reasonable legal fees and expenses, incurred in connection with pursuing such claim against the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the SellerCompany, the Seller shall have Purchaser or the right to select separate counsel to participate in Parent.
(5) If the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereofPurchaser, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller any of its intent to do so, Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other Person and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, is not a continuing or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise surviving corporation or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense entity of such Claim). If the Company chooses to defend any Claimconsolidation or merger, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.or
Appears in 1 contract
Samples: Arrangement Agreement
Insurance and Indemnification. (a) The From and after the Effective Time, Parent shall fulfill and honour, and shall cause the Company hereby acknowledges and/or its successors to fulfill and honour, in all respects, its obligations pursuant to any indemnification obligations to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and agreements between the Company and the Seller, whereby present or former directors or officers of the Company has agreed or any of its Subsidiaries (each, an “Indemnified Person”) in effect immediately prior to indemnify the Seller Effective Time and any indemnification provisions under the Constating Documents of the Company or the applicable Laws, in his capacity each case, as in effect on the date hereof and to the extent disclosed in the Company’s Disclosure Letter and permitted by applicable Laws and/or its successors to not amend, repeal or otherwise modify the provisions with respect to exculpation and indemnification contained in the Constating Documents of the Company as in effect on the date hereof for a director period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, prior to the Effective Time, were directors or officers of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after Prior to the Closing DateEffective Time, the Company and its Subsidiaries shall maintain in effect and, if the current provisions regarding limitation of liability of directors Company and indemnification of, and advancement of expenses its Subsidiaries are unable to, directors as contained in Parent shall cause the Company and its Certificate of Incorporation and Bylaws Subsidiaries as of the Closing Date; providedEffective Time, however, that to obtain and fully pay the Company may amend such provisions so long as any such amendment does not materially and adversely affect premium for the Seller.
(c) For ten years from and after extension of the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability coverage of the existing primary and excess directors’ and officers’ insurance maintained by policies for the Company and its Subsidiaries for a period of at not least six years from and after the Effective Time (“D&O Insurance”) with terms, conditions, retentions and limits of liability that are no less advantageous than current levels the coverage provided under the existing policies of the Company and its Subsidiaries with respect to acts any actual or omissions occurring on alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director or officer of the Company or any of its Subsidiaries by reason of him or her serving in such capacity that existed or occurred at or prior to the SellerEffective Time (including in connection with this Agreement or the transactions or actions contemplated hereby) provided that the aggregate cost of such D&O Insurance shall not exceed 200% of the aggregate premium paid by the Company for its current primary and excess directors’ and officers’ insurance policies. If the Company and its Subsidiaries for any reason fail to obtain such “tail” insurance policies as of the Effective Time, the Company and its Subsidiaries shall continue to maintain in effect for a period of at least six years from and after the Effective Time the D&O Insurance in place as of the date hereof with terms, conditions, retentions and limits of liability that are no less advantageous than the coverage provided under the Company’s resignation existing policies as a director of the date hereof, or the Company shall purchase comparable D&O Insurance for such six-year period with terms, conditions, retentions and limits of liability that are at least as favourable as provided in the Company’s existing policies as of the date hereof.
(c) If the Company or any of its successors or assigns shall (i) amalgamate, consolidate with or merge or wind up into any other person and shall not be the continuing or surviving corporation or entity, or (ii) transfer all or substantially all of its properties and assets to any person, then, and in each such case, proper provisions shall be made so that the successors and assigns of the Company (provided shall assume all of the obligations set forth in this Section 4.6. Parent and Acquireco will ensure that the Company may substitute therefor policies and any successors or assigns have adequate financial resources to satisfy all of at least the same coverage and amounts containing terms and conditions which are, obligations set forth in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)this Section 4.6.
(d) The Company provisions of this Section 4.6 shall indemnify, hold harmless and defend survive the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out consummation of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby by this Agreement and therebyare intended for the benefit of, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all be enforceable by, each insured or indemnified person, his or her heirs or legal representatives and, for such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the twopurpose, the Company hereby confirms that it is solely obligated to satisfy acting as agent and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action trustee on his their behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.
Appears in 1 contract
Samples: Arrangement Agreement
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations to In the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Merger Agreement, dated KCI and Purchaser have agreed that the certificate of incorporation and bylaws of the surviving corporation in the Merger will contain provisions no less favorable to present or former LifeCell directors and officers than LifeCell’s certificate of incorporation and bylaws in effect as of January 1April 7, 20002008 with respect to indemnification, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, exculpation and advancement of expenses tofor acts or omissions existing or occurring at or prior to the Effective Time, directors as contained which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in its Certificate any manner that would affect adversely the rights of Incorporation and Bylaws as individuals who were directors, officers, employees or agents of the Closing Date; providedCompany at or prior to the Effective Time, howeverunless such modification shall be required by law. The Merger Agreement further provides that KCI has the right, that but not the Company may amend such provisions so long obligation, to purchase a six-year prepaid “tail policy” on terms and conditions (in both amount and scope) providing substantially equivalent benefits as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the LifeCell’s current policies of officers’ and directors’ liability insurance covering acts or omissions occurring at or prior to the Effective Time covering the transactions contemplated hereby. LifeCell also has the option to purchase a “tail policy.” If neither party has purchased a “tail policy” then KCI and the surviving corporation shall maintain LifeCell’s existing directors’ and officers’ insurance policy for a period not less than six years after the Effective Time, provided that KCI may substitute a policy of equivalent coverage and amount containing terms no less favorable to such former directors or officers. Under the terms of the Merger Agreement, such insurance coverage is required to be maintained only to the extent of coverage that can be maintained at an aggregate cost of not greater than 250 percent of the current annual premium for LifeCell’s directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)coverage.
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.
Appears in 1 contract
Insurance and Indemnification. (a1) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation Purchaser will, or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between will cause the Company and its Subsidiaries to, maintain in effect for six years from the Seller, whereby Effective Date customary policies of directors’ and officers’ liability insurance providing protection no less favourable to the protection provided by the policies maintained by the Company has agreed to indemnify the Seller and its Subsidiaries which are in his capacity as a director of the Company. The Company hereby confirms its obligations effect immediately prior to the Seller under such instruments Effective Date and its intention providing protection in respect of claims arising from facts or events which occurred on or prior to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Effective Date; provided, however, that the Company may amend such provisions so long as Purchaser acknowledges and agrees that prior to the Effective Time, notwithstanding any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Dateother provision hereof, the Company shall maintain in effect the current policies of may, at its option, purchase prepaid run-off directors’ and officers’ liability insurance maintained insurance on terms substantially similar to the directors’ and officers’ liability policies currently maintained by the Company, but providing coverage for a period of six years from the Effective Date with respect to claims arising from or related to facts or events which occurred on or prior to the Effective Date.
(2) The Purchaser shall, following the Effective Date, honour and cause the Company at to honour all rights to indemnification or exculpation in favour of present and former officers and directors of the Company and its Subsidiaries as provided in the constating documents of the Company or any of its Subsidiaries in effect as of the date of this Agreement or any Contract by which the Company or any of its Subsidiaries is bound and which is in effect as of the date hereof (including provisions relating to the advancement of expenses incurred in the defense of any action or suit), copies of which have been delivered to the Purchaser, will survive the completion of the Plan of Arrangement and continue in full force and effect and without modification for a period of not less than current levels six (6) years from the Effective Time, with respect to acts or actions or omissions of the Indemnified Parties occurring on or prior to the Seller’s resignation Effective Time.
(3) If the Company or any of its Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not a continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, the Purchaser shall take commercially reasonable efforts to ensure that any such successor or assign (including, as a director applicable, any acquirer of substantially all of the properties and assets of the Company (provided that or its Subsidiaries) assumes all of the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, obligations set forth in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)this Section 4.9.
(d4) The Company Purchaser shall indemnify, hold harmless act as agent and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase trustee of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director benefits of the Company. The Company may elect to compromise or defend, at its own expense foregoing for the current and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy former directors and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense officers of the Company (it being understood for the Company may participate, at its own expense, in the defense purpose of such ClaimSection 4.9(1). If This Section 4.9 shall survive the Company chooses to defend any Claim, the Seller shall, subject to receipt execution and delivery of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or and the Irrevocable Proxycompletion of the Arrangement.
Appears in 1 contract
Insurance and Indemnification. 8.1 AMS and ISOC agree to maintain adequate liability insurance, such protection being applicable to officers, employees and agents while acting within the scope of their employment
8.2 ISOC agrees to hold harmless, indemnify and defend AMS, its trustees, officers, employees and agents from all liabilities, demands, damages, expenses (including attorneys' fees) and losses arising out (a) The Company hereby acknowledges its indemnification obligations to the Seller any misrepresentation or breach by ISOC of any representation or warranty made by it under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity this Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
or (b) For ten years from and after the Closing Dateany breach by ISOC of any covenant or agreement to be performed by it under this Agreement, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
or (c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained third party intellectual property claims alleging infringement by the Company at RFC Materials in the form provided by ISOC to AMS, provided that such indemnification under thus subsection (C) shall not less than current levels with respect to acts or omissions occurring on or prior apply to the Seller’s resignation as a director extent such claim arises from AMS' modification of such RFC Materials or combination of such RFC Materials with materials not provided by ISOC, without which modification or combination the Company (alleged infringement would not have occurred. ISOC shall have sole control over the defense and litigation of any such third party intellectual property claims, provided that ISOC shall obtain AMS' written approval before settlement of any dispute arising from this indemnification. AMS shall not unreasonably withhold consent unless the Company may substitute therefor policies property or assets of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX)AMS would be adversely affected.
(d) The Company shall indemnify8.3 AMS agrees to hold harmless, hold harmless indemnify and defend the Seller against any ISOC, its trustees, officers, employees and agents from all claims, losses, liabilities, damagesdemands, judgmentsdamage, fines expenses (including reasonable attorneys’ fees ' fees) and expenses) incurred by Seller relating to or losses arising out of (a) any claim, demand, asserted liability, suit misrepresentation or proceeding breach by AMS of any kind representation or warranty made by it under this Agreement, or (anyb) any breach by AMS of any covenant or agreement to be performed by it under this Agreement, a “Claim”or (c) any claims brought by employees, students, faculty, contractors or agents of AMS in connection with respect to this Agreement their employment or engagement in the Work, their compensation or benefits, or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase termination of the Shares and the Optionstheir employment. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller AMS shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in sole control over the defense and litigation of any such action on his behalfthird party intellectual property claims, at the expense of the Company; and provided further, however, that the Company AMS shall forfeit the right to control the defense or obtain ISOC's written approval before settlement of any such claim if, at any time after assuming dispute arising from this indemnification. ISOC shall not unreasonably withhold consent unless the defense property or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature assets of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall ISOC would be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxyadversely affected.
Appears in 1 contract
Samples: Services Agreement
Insurance and Indemnification. (a1) The Company hereby acknowledges its indemnification obligations Prior to the Seller under Effective Time, the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity AgreementCorporation shall and, dated if the Corporation is unable after using commercially reasonable efforts, the Purchaser shall cause the Corporation to, as of January 1the Effective Time, 2000, by obtain and between fully pay the Company and premium for the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director extension of the Company. The Company hereby confirms its obligations to directors’ and officers’ liability coverage of the Seller under such instruments Corporation’s and its intention to honor such obligations.
(b) For ten Subsidiaries’ existing directors’ and officers’ insurance policies for a claims reporting or run-off and extended reporting period and claims reporting period of at least six years from and after the Closing Date, Effective Time with respect to any claim related to any period of time at or prior to the Company shall maintain in effect Effective Time from the Corporation’s current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of insurance carriers or an insurance carrier with the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of same or better credit rating with respect to directors’ and officers’ liability insurance maintained by the Company at not less than current levels (“D&O Insurance”), and with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director terms, conditions, retentions and limits of the Company (provided liability that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, are no less advantageous to the insuredpresent and former directors and officers of the Corporation and its Subsidiaries than the coverage provided under the Corporation’s and its Subsidiaries’ existing policies with respect to any actual or alleged error, so long as misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a present or former director or officer of the substitute insurer Corporation or carrier has a Best’s rating any of its Subsidiaries by reason of him or her serving in such capacity that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend existed or occurred at or prior to the Seller against any and all claims, losses, liabilities, damages, judgments, fines Effective Time (including reasonable attorneys’ fees and expenses) incurred in connection with the approval or completion of this Agreement, the Arrangement or the other transactions contemplated by Seller relating to this Agreement or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect related to this Agreement or the Irrevocable Proxy or and the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expensehereby). If the Company elects not Corporation for any reason
(2) The Purchaser shall cause the Corporation or the applicable Subsidiary of the Corporation to compromise honour all rights to indemnification or defend exculpation now existing in favour of present and former employees, officers and directors of the ClaimCorporation and its Subsidiaries to the extent that they are contained in their Constating Documents or disclosed in the Corporation Filings and acknowledges that such rights, fails to notify the Seller extent that they are contained in their Constating Documents or disclosed in the Corporation Filings, shall survive the completion of the Plan of Arrangement and shall continue in full force and effect in accordance with their terms.
(3) If the Purchaser, the Corporation or any of its election as herein providedSubsidiaries or any of their respective successors or assigns following the Effective Time (i) consolidates or amalgamates with or merges or liquidates into any other Person and is not a continuing or surviving corporation or entity of such consolidation, amalgamation, merger or liquidation, or fails (ii) transfers all or substantially all of its properties and assets to satisfy any Person, proper arrangements shall be made so as to ensure that any such successor or assign (including, as applicable, any acquirer of substantially all of the Litigation Conditionsproperties and assets of the Purchaser, the Seller may pay, compromise Corporation or defend such Claim at the expense its Subsidiaries) assumes all of the Company obligations set forth in this Section 4.8.
(it being understood 4) This Section 4.8 shall survive the Company may participateconsummation of the Arrangement and is intended to be for the benefit of, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claimand shall be enforceable by, the Seller shallpresent and former directors and officers of the Corporation and its Subsidiaries and their respective heirs, subject to receipt executors, administrators and personal representatives (the “Indemnified Persons”) and shall be binding on the Purchaser, the Corporation and their respective successors and assigns, and, for such purpose, the Corporation hereby confirms that it is acting as agent on behalf of a reasonable confidentiality agreementthe Indemnified Persons. As part of the Closing, make available the Purchaser and the Corporation shall provide direct confirmation of their undertakings under this Section 4.8 to the Company any books, records or other documents within his control, for which present directors and officers of the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxyCorporation and its Subsidiaries.
Appears in 1 contract
Insurance and Indemnification. (ai) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity Buyer will provide each individual who served as a director or officer of the Company. The Company hereby confirms Target or any of its obligations Subsidiaries at any time prior to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ Effective Time with liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or failures to act prior to the Seller’s resignation as Effective Time for a director period of six years after the Effective Time which liability insurance shall be no less favorable in coverage and amount than any applicable insurance in effect immediately prior to the Effective Time (other than to the extent the available limit of any such insurance policy may be reduced or exhausted by reason of the Company (provided that the Company may substitute therefor policies payment of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller claims thereunder relating to such directors or arising out officers of Target or any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”Subsidiaries); provided, however, that in order to maintain or procure such coverage, neither the Buyer nor the Surviving Corporation, as applicable, shall be required to pay, in the aggregate, an annual premium in excess of 300% of the current annual premium paid by the Target for its existing coverage (the "Insurance Premium Cap"); and provided, further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the parties Insurance Premium Cap, the Buyer and the Surviving Corporation shall only be required to obtain as much coverage as can be obtained by paying, in the aggregate, an annual premium equal to the Insurance Premium Cap.
(ii) Except as permitted under Section 2(d)(ii) and (iii), for a period of six years after the Effective Time, the Buyer will not take any action shall include both to alter or impair any exculpatory or indemnification provisions existing in the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict articles of interest because incorporation or bylaws of the availability of different Surviving Corporation (except as required by Virginia Corporation Law or additional defenses federal law) to the Sellerextent that such modifications are less advantageous to any individual who served as a director or officer of the Target or any of its Subsidiaries at any time prior to the Effective Time than the exculpatory or indemnification provisions contained in the articles of incorporation or bylaws of the Target as of the date hereof.
(iii) If the Merger is consummated, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense Buyer and Surviving Corporation will indemnify each individual who served as a director or officer of the Company; and provided furtherTarget or any of its Subsidiaries, however, that the Company shall forfeit the right to control the defense or settlement of DHI or any such claim ifof its Subsidiaries, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject prior to the foregoingEffective Time from and against any and all actions, if the Company elects to compromise or defend such Claimsuits, it shall within 30 days (or soonerproceedings, if the nature of the Claim so requires) notify the Seller of its intent to do sohearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, expenses, and the Seller shall reasonably cooperatefees, at the expense of the Companyincluding all court costs and reasonable attorneys' fees and expenses, in the compromise resulting from, arising out of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim caused by the Company that the Seller has breached this Agreement or any of the Irrevocable Proxytransactions contemplated herein.
Appears in 1 contract
Insurance and Indemnification. (a1) The Parties agree that all rights to indemnification or exculpation now existing in favour of the present and former directors and officers of the Company hereby acknowledges or of any of its indemnification obligations Subsidiaries or who acts as a fiduciary under any Company Plan (each such present or former director or officer of the Company or of any of its Subsidiaries or fiduciary being herein referred to as an “Indemnified Party” and such Persons collectively being referred to as the “Indemnified Parties”) as provided in the constating documents of the Company or any of its Subsidiaries in effect as of the date of this Agreement or any Contract by which the Company or any of its Subsidiaries is bound and which is in effect as of the date hereof (including provisions relating to the Seller under advancement of expenses incurred in the Company’s Certificate defense of Incorporation any action or Bylaws suit), copies of which have been delivered to the Purchaser, will survive the completion of the Plan of Arrangement and that certain Indemnity Agreementcontinue in full force and effect and without modification for a period of not less than six years from the Effective Time, dated as with respect to actions or omissions of January 1the Indemnified Parties occurring prior to the Effective Time.
(2) The Purchaser will, 2000, by and between or will cause the Company and the Sellerits Subsidiaries to, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
for six (c6) For ten years from and after the Closing Date, the Company shall maintain in effect the current Effective Date customary policies of directors’ and officers’ liability insurance providing protection no less favourable to the protection provided by the policies maintained by the Company at not less than current levels with and its Subsidiaries which are in effect immediately prior to the Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”)Effective Date; provided, however, that if the parties Purchaser acknowledges and agrees that prior to the Effective Time, notwithstanding any other provision hereof, the Company may, at its option, purchase prepaid run-off directors’ and officers’ liability insurance on terms substantially similar to the directors’ and officers’ liability policies currently maintained by the Company, but providing coverage for a period of six (6) years from the Effective Date with respect to claims arising from or related to facts or events which occurred on or prior to the Effective Date; provided further, that the premiums for any such policies, including any policy the Purchaser puts in any action place, shall include both not exceed 250% of the current premium paid by the Company and its Subsidiaries (it being understood and agreed that in the Sellerevent such directors’ and officers’ liability insurance cannot be obtained for 250% of such last annual premium or less, in the aggregate, the Purchaser shall only remain obligated to provide the greatest directors’ and officers’ liability insurance coverage as may be obtained for such amount).
(3) The provisions of this Section 4.12 are and are intended to be for the benefit of, and the Seller shall have reasonably concluded that counsel selected will be enforceable by, each Indemnified Party, his or her heirs, executors, administrators and other legal representatives and such rights will be held by the Company has a conflict of interest because of the availability of different or additional defenses Company, and any successor to the SellerCompany (including any surviving corporation), in trust for such Persons and the Seller shall have Company hereby accepts such trust and agrees to hold the right to select separate counsel to participate in the defense benefit of and enforce performance of such action covenants on behalf of each Indemnified Party, his behalfor her heirs, at the expense of the Companyexecutors, administrators and other legal representatives; and provided furtherprovided, however, that the Company shall forfeit the right to control the defense or settlement no approval of any beneficiary of such claim if, at any time after assuming trust will be required in connection with an amendment or variation of this Section 4.12 prior to the defense or settlement thereofEffective Time.
(4) If the Purchaser, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller any of its intent to do so, Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, continuing or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise surviving corporation or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense entity of such Claim). If the Company chooses to defend any Claimconsolidation or merger, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.or
Appears in 1 contract
Samples: Arrangement Agreement
Insurance and Indemnification. 10.1 INDEMNIFICATION :
(aA) The Company LICENSEE hereby acknowledges indemnifies and holds LICENSOR, its indemnification obligations to the Seller under the Company’s Certificate of Incorporation successors and assigns, and any entity owning or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments controlling LICENSOR and its intention owners, officers, directors, employees, agents and representatives (hereinafter individually or collectively referred to honor such obligations.
(bas “Licensor Corporate”) For ten years harmless from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all liabilities, claims, lossescauses of action, liabilitiessuits, damages, judgmentsincluding without limitation, fines (suits for personal injury or death of third parties, and expenses, including reasonable attorneys’ fees and expenses) incurred by Seller relating , for which LICENSOR or Licensor Corporate may become liable or may incur or be compelled to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service pay as a director result of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing LICENSEE’S performance of (or its failure to the Seller thatperform) its obligations or responsibilities hereunder, as between the two, the Company is solely obligated to satisfy and discharge the Claim, or (ii) the Company makes reasonably adequate provision to satisfy the Seller LICENSEE’S breach of the Company’s ability to satisfy any of its covenants, representations and discharge the claimwarranties under this Agreement, and or (iii) any claim based upon allegations of negligence or strict liability which are attributable to any act of LICENSEE, or (iv) claims of infringement of any intellectual property right that would not be included under Section 10. 1 (B) below. In the Claim involves solely monetary damages (collectivelyevent there is a claim against LICENSOR for which indemnification from LICENSEE is sought hereunder, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller LICENSEE shall have the right to select separate counsel to participate in defend, settle or contest said claim, at LICENSEE’S sole discretion, so long as the defense exercise of such action on his behalf, at discretion does not adversely affect LICENSOR in a substantial manner and does not affect the expense Marks in any way. This paragraph shall survive expiration or termination of the Company; Licensed Term.
(B) LICENSOR hereby indemnifies and provided furtherholds LICENSEE, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company its successors and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do soassigns, and the Seller shall reasonably cooperateany entity owning or controlling LICENSEE and its officers, at the expense directors, employees, agents and representatives (hereinafter individually or collectively referred to as “Licensee Corporate”) harmless from and against liabilities, claims, causes of the Companyaction, in the compromise ofsuits, damages, including without limitation, suits for bodily injury or defense againstdeath of third parties, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claimand expenses, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a including reasonable confidentiality agreement, make available to the Company any books, records or other documents within his controlattorneys’ fees and expenses, for which LICENSEE or Licensee Corporate may become liable or may incur or be compelled to pay as a result of an infringement of any third party’s registered trademark in the Company shall be obliged to reimburse Territory resulting from LICENSEE’S Use of the Seller Marks in compliance with all the reasonable out-of-pocket expenses terms and conditions of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement (including, but not limited to, the Approval Process set forth in 6.2). In the event there is a claim against LICENSEE for which indemnification from LICENSOR is sought hereunder, LICENSOR shall have the sole right to elect to defend, settle or contest said claim, at LICENSOR’S sole discretion, except as otherwise provided herein. This paragraph shall survive expiration or termination of the Irrevocable ProxyLicensed Term.
Appears in 1 contract
Samples: Trademark License Agreement (Fashion House Holdings Inc)
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation AcquisitionCo will, or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company will cause SMART and the SellerSMART Subsidiaries to, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained without any reduction in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten amount or scope for six years from and after the Closing Date, the Company shall maintain in effect the current Effective Time customary policies of directors’ and officers’ liability insurance providing protection no less favourable to the protection provided by the policies maintained by SMART and the Company at not less than current levels with respect to acts or omissions occurring on or SMART Subsidiaries that are in effect immediately prior to the Seller’s resignation as a director Effective Time and providing protection in respect of the Company (provided claims arising from facts or events that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous occurred prior to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”)Effective Time; provided, however, that if in no event will AcquisitionCo, SMART or the parties SMART Subsidiaries be required to, collectively, expend a premium for such coverage in any action shall include both excess of two hundred fifty percent (250%) of the Company last premium, collectively, paid by SMART and the SellerSMART Subsidiaries for such insurance prior to the date of this Agreement, which amount is set forth in the Disclosure Letter (the “Maximum Premium”). If such insurance coverage cannot be obtained at a premium equal to or less than the Maximum Premium, SMART and the Subsidiaries will obtain, and AcquisitionCo will cause the Seller shall have reasonably concluded SMART and the SMART Subsidiaries to obtain, that counsel selected by the Company has a conflict amount of interest because of the availability of different directors’ and officers’ insurance (or additional defenses “tail” coverage) obtainable for an annual premium equal to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation ConditionsMaximum Premium. Subject Prior to the foregoingEffective Time, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the CompanySMART may, in the compromise alternative, with the prior written consent of AcquisitionCo, not to be unreasonably withheld, purchase run off directors’ and officers’ liability insurance for a period of up to six years from the Effective Time and in such event, neither of AcquisitionCo or SMART shall have any further obligation under this Section 7.8(a).
(b) AcquisitionCo agrees that it shall directly honor all rights to indemnification or exculpation agreements, arrangements or rights now existing in favour of present and former officers and directors of SMART and the SMART Subsidiaries. All rights to indemnification or exculpation shall survive the completion of the Arrangement and the provisions of this Section 7.8 [Insurance and Indemnification] shall be binding, jointly and severally, on all successors of AcquisitionCo.
(c) The provisions of this Section 7.8 [Insurance and Indemnification] are intended for the benefit of, or defense against, such Claim (it being understood the Seller and shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise enforceable by, each insured or defend the Claimindemnified person, fails to notify the Seller of its election as herein providedhis or her heirs, or fails to satisfy the Litigation Conditionsexecutors, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his controladministrators and legal representatives and, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnifysuch purpose, defend or hold harmless the Seller for any Claim by the Company SMART hereby confirms that the Seller has breached this Agreement or the Irrevocable Proxyit is acting as agent and trustee on their behalf.
Appears in 1 contract
Insurance and Indemnification. 1. The Parties agree that all rights to indemnification or exculpation now existing in favour of the present and former directors and officers of the Company or of any of its Subsidiaries or who acts as a fiduciary under any Company Plan (each such present or former director or officer of the Company or of any of its Subsidiaries or fiduciary being herein referred to as an “Indemnified Party” and such Persons collectively being referred to as the “Indemnified Parties”) as provided in the Organizational Documents of the Company or any of its Subsidiaries in effect as of the date of this Agreement or any Contract by which the Company or any of its Subsidiaries is bound and which is in effect as of the date hereof (a) The Company hereby acknowledges its indemnification obligations including provisions relating to the Seller under advancement of expenses incurred in the Company’s Certificate defense of Incorporation any action or Bylaws suit), copies of which have been delivered to the Purchaser, will survive the completion of the Plan of Arrangement and that certain Indemnity Agreementcontinue in full force and effect and without modification for a period of not less than six years from the Effective Time, dated as with respect to actions or omissions of January 1the Indemnified Parties occurring prior to the Effective Time.
2. The Purchaser will, 2000, by and between or will cause the Company and its Subsidiaries to, maintain in effect for six (6) years from the Seller, whereby Effective Date customary policies of directors’ and officers’ liability insurance providing protection no less favourable than the protection provided by the policies maintained by the Company has agreed to indemnify the Seller and its Subsidiaries which are in his capacity as a director of the Company. The Company hereby confirms its obligations effect immediately prior to the Seller under such instruments Effective Date and its intention providing protection in respect of claims arising from facts or events which occurred on or prior to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Effective Date; provided, however, that the Company may amend such provisions so long as Purchaser acknowledges and agrees that prior to the Effective Time, notwithstanding any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Dateother provision hereof, the Company may, at its option, purchase prepaid run-off directors’ and officers’ liability insurance on terms substantially similar to the directors’ and officers’ liability policies currently maintained by the Company and its Subsidiaries, but providing coverage for a period of six (6) years from the Effective Date with respect to claims arising from or related to facts or events which occurred on or prior to the Effective Date; provided further, that the premiums for any such policies, including any policy the Purchaser puts in place, shall maintain in effect not exceed 300% of the current policies premium paid by the Company and its Subsidiaries (it being understood and agreed that in the event such directors’ and officers’ liability insurance cannot be obtained for 300% of such last annual premium or less, in the aggregate, the Purchaser shall only remain obligated to provide the greatest directors’ and officers’ liability insurance coverage as may be obtained for such amount).
3. The provisions of this Section 4.10 shall survive the consummation of the Arrangement and are and are intended to be for the benefit of, and will be enforceable by, each Indemnified Party, his or her heirs, executors, administrators and other legal representatives and such rights will be held by the Company, and any successor to the Company (including any Surviving Corporation), in trust for such Persons and the Company hereby accepts such trust and agrees to hold the benefit of and enforce performance of such covenants on behalf of each Indemnified Party, his or her heirs, executors, administrators and other legal representatives; provided, however, that no approval of any beneficiary of such trust will be required in connection with an amendment or variation of this Section 4.10 prior to the Effective Time.
4. If the Purchaser, the Company or any of its Subsidiaries or any of their respective 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 and assets to any Person, the Purchaser shall ensure that any such successor or assign (including, as applicable, any acquirer of substantially all of the properties and assets of the Company or any of its Subsidiaries) assumes all of the obligations set forth in this Section 4.10.
5. Nothing in this Agreement is intended to, shall be construed to, or shall release, waive or impair any rights to directors’ and officers’ liability insurance maintained by the Company at not less than current levels claims under any policy that is or has been in existence with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do soSubsidiaries for any of its respective directors, and the Seller shall reasonably cooperateofficers or other employees, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood and agreed that the Seller shall be entitled indemnification and other rights provided for in this Section 4.10 are not prior to participate or in substitution for any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend claims under such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.policies.
Appears in 1 contract
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Effective Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” policies of directors’ and officers’ liability insurance providing protection no less favourable in the aggregate to the protection provided by the policies maintained by the Company at not less than current levels with and its Subsidiaries which are in effect immediately prior to the Effective Date and pr oviding protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the SellerEffective Date and the Purchaser shall, or shall cause the Company and its Subsidiaries to, maintain such tail policies in effect without any reduction in scope or coverage for six years from the Effective Date; provided that the Purchaser shall not be required to pay any amounts in respect of such coverage prior to the Effective Time and provided further that the cost of such policies shall not exceed 300% (such amount, the “Base Premium”) of the Company’s resignation as current annual aggregate premium for policies currently maintained by the Company or its Subsidiaries; provided further , however, that if such insurance can only be obtained at a director premium in excess of the Base Premium, the Company may purchase the most advantageous policies of directors ’ and officers’ liability insurance reasonably available for an annual premium not to exceed the Base Premium, and the Purchaser shall, or shall cause the Company and its Subsidiaries to, maintain such coverage for six years from the Effective Date.
(b) The Purchaser shall cause the Company and its Subsidiaries to honour all rights to indemnification or exculpation now existing under applicable Law, the Constating Documents of the Company (provided that or any of its Subsidiaries or under indemnification agreements entered into in the Ordinary Course in favour of present and former employees, officers and directors of the Company may substitute therefor policies and its Subsidiaries (together with their respective heirs, executors or administrators, the “Indemnified Persons”), and acknowledges that such rights shall survive the completion of at least the same coverage Plan of Arrangement and amounts containing shall continue in full force and effect in accordance with their terms without modification for a period of not less than six years from the Effective Date, and conditions which arethe Company and its Subsidiaries or any of their respective successors or assigns (including any corporation or other entity continuing following the amalgamation, in merger, consolidation or winding up of the aggregateCompany or any of its Subsidiaries with or into one or more other entities (pursuant to a statutory procedure or otherwise) ), no less advantageous as applicable, shall continue to honour such rights of indemnification and exculpation and indemnify such Indemnified Persons pursuant thereto, with respect to actions or omissions of such Indemnified Persons occurring prior to the insuredEffective Time, so long for six years from the Effective Date.
(c) If the Company or any of its Subsidiaries or any of their respective successors or assigns (including any corporation or other entity continuing following the amalgamation, merger, consolidation or winding up of the Company or any of its Subsidiaries with or into one or more other entities (pursuant to a statutory procedure or otherwise)) (i) consolidates with or merges into any other Person and is not a continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, the Purchaser shall ensure that any such successor or assign (including, as applicable, any acquirer of substantially all of the substitute insurer properties and assets of the Company or carrier has a Best’s rating that is no lower than AX)its Subsidiaries) assumes all of the obligations set forth in this Section 4.13.
(d) The Company Purchaser shall indemnifypay all reasonable expenses, hold harmless and defend the Seller against any and all claimsincluding legal fees, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) that may be incurred by Seller relating to or arising out any Indemnified Person in enforcing the indemnity and other obligations provided for in this Section 4.13. The rights of each Indemnified Person hereunder shall be in addition to, and not in limitation of, any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or other rights such Indemnified Person may have under the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase Constating Documents of the Shares and the Options. This Company or any of its Subsidiaries or any other indemnification obligation is separate and apart from the obligations referred to in the above paragraphs arrangement.
(e) The provisions of this Section 15 4.13 shall be binding, jointly and severally, on all successors of the Purchaser.
(f) The Purchaser acknowledges to each Indemnified Person his or her direct rights against it under the provisions of this Section 4.13, which are intended for the benefit of, and shall apply to any and all be enforceable by, each Indemnified Person and, for such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the twopurpose, the Company hereby confirms that it is solely obligated to satisfy acting as agent and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action trustee on his their behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.
Appears in 1 contract
Samples: Arrangement Agreement
Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Effective Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” policies of directors’ and officers’ liability insurance providing protection no less favourable in the aggregate to the protection provided by the policies maintained by the Company at not less than current levels with and its Subsidiaries which are in effect immediately prior to the Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the SellerEffective Date and the Purchaser shall, or shall cause the Company and its Subsidiaries to, maintain such tail policies in effect without any reduction in scope or coverage for six years from the Effective Date; provided that the Purchaser shall not be required to pay any amounts in respect of such coverage prior to the Effective Time and provided further that the cost of such policies shall not exceed 300% (such amount, the “Base Premium”) of the Company’s resignation as current annual aggregate premium for policies currently maintained by the Company or its Subsidiaries; provided further , however, that if such insurance can only be obtained at a director premium in excess of the Base Premium, the Company may purchase the most advantageous policies of directors ’ and officers’ liability insurance reasonably available for an annual premium not to exceed the Base Premium, and the Purchaser shall, or shall cause the Company and its Subsidiaries to, maintain such coverage for six years from the Effective Date.
(b) The Purchaser shall cause the Company and its Subsidiaries to honour all rights to indemnification or exculpation now existing under applicable Law, the Constating Documents of the Company (provided that or any of its Subsidiaries or under indemnification agreements entered into in the Ordinary Course in favour of present and former employees, officers and directors of the Company may substitute therefor policies and its Subsidiaries (together with their respective heirs, executors or administrators, the “Indemnified Persons”), and acknowledges that such rights shall survive the completion of at least the same coverage Plan of Arrangement and amounts containing shall continue in full force and effect in accordance with their terms without modification for a period of not less than six years from the Effective Date, and conditions which arethe Company and its Subsidiaries or any of their respective successors or assigns (including any corporation or other entity continuing following the amalgamation, in merger, consolidation or winding up of the aggregateCompany or any of its Subsidiaries with or into one or more other entities (pursuant to a statutory procedure or otherwise)), no less advantageous as applicable, shall continue to honour such rights of indemnification and exculpation and indemnify such Indemnified Persons pursuant thereto, with respect to actions or omissions of such Indemnified Persons occurring prior to the insuredEffective Time, so long for six years from the Effective Date.
(c) If the Company or any of its Subsidiaries or any of their respective successors or assigns (including any corporation or other entity continuing following the amalgamation, merger, consolidation or winding up of the Company or any of its Subsidiaries with or into one or more other entities (pursuant to a statutory procedure or otherwise)) (i) consolidates with or merges into any other Person and is not a continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, the Purchaser shall ensure that any such successor or assign (including, as applicable, any acquirer of substantially all of the substitute insurer properties and assets of the Company or carrier has a Best’s rating that is no lower than AX)its Subsidiaries) assumes all of the obligations set forth in this Section 4.13.
(d) The Company Purchaser shall indemnifypay all reasonable expenses, hold harmless and defend the Seller against any and all claimsincluding legal fees, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) that may be incurred by Seller relating to or arising out any Indemnified Person in enforcing the indemnity and other obligations provided for in this Section 4.13. The rights of each Indemnified Person hereunder shall be in addition to, and not in limitation of, any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or other rights such Indemnified Person may have under the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase Constating Documents of the Shares and the Options. This Company or any of its Subsidiaries or any other indemnification obligation is separate and apart from the obligations referred to in the above paragraphs arrangement.
(e) The provisions of this Section 15 4.13 shall be binding, jointly and severally, on all successors of the Purchaser.
(f) The Purchaser acknowledges to each Indemnified Person his or her direct rights against it under the provisions of this Section 4.13, which are intended for the benefit of, and shall apply to any and all be enforceable by, each Indemnified Person and, for such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the twopurpose, the Company hereby confirms that it is solely obligated to satisfy acting as agent and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action trustee on his their behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.
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Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation Purchaser agrees that it will maintain in effect, or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between will cause the Company and the Selleror its successors to maintain in effect, whereby the Company has agreed to indemnify the Seller without any reduction in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten scope or coverage for six years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current Effective Time customary policies of directors’ and officers’ liability insurance providing protection comparable to the current protection provided by the policies maintained by the Company at not less than current levels and its Subsidiaries as are in effect immediately prior to the Effective Time and providing coverage on a “trailing” or “run-off” basis for all present and former directors and officers of the Company with respect to acts claims arising from facts or omissions occurring on or events which occurred prior to the Seller’s resignation as a director Effective Time. Furthermore, prior to the Effective Time, the Company may, in the alternative, with the consent of the Company (Purchaser, not to be unreasonably withheld, conditioned or delayed, purchase run-off directors’ and officers’ liability insurance for a period of up to six years from the Effective Time; provided that the Company may substitute therefor cost of such policies of at least shall not exceed 250% (such amount, the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “ClaimBase Premium”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected current annual aggregate premium for policies currently maintained by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Companyits Subsidiaries; and provided further, however, that if such insurance can only be obtained at a premium in excess of the Base Premium, the Company may purchase the most advantageous policies of directors’ and officers’ liability insurance reasonably available for an annual premium not to exceed the Base Premium, and the Purchaser shall, or shall cause the Company and its Subsidiaries to, maintain such coverage for six years from the Effective Date, and in such event none of the Purchaser, the Company or any successor of the Company will have any further obligation under this Section 5.6(a).
(b) The Purchaser agrees that all rights to indemnification or exculpation now existing in favour of present and former officers and directors of the Company shall forfeit survive completion of the Arrangement and shall continue in full force and effect for a period of not less than six years from the Effective Date. Any right to control the defense indemnification pursuant to this Section 5.6 shall not be amended, repealed or settlement of any such claim if, otherwise modified at any time after assuming in a manner that would adversely affect the defense or settlement thereof, the Company rights of such present and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, former officers and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense directors of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxyas provided herein.
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Samples: Arrangement Agreement
Insurance and Indemnification. (a) The Company hereby acknowledges Cenovus and Husky agree that that all rights to indemnification, expense reimbursement or exculpation now existing in favour of present and former officers and directors of Husky shall survive completion of the Arrangement and, after the Effective Time, Husky and any successor to Husky will not take any action to terminate or adversely affect, and will fulfill its indemnification obligations pursuant to, expense advancement and exculpation arrangements and indemnities provided or available to or in favour of past and present officers and directors of Husky pursuant to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director provisions of the Company. The Company hereby confirms articles, by-laws or other constating documents of Husky, applicable corporate legislation and any written indemnity agreements (and each of them), which have been entered into between Husky and its obligations past or current officers or directors effective on or prior to the Seller under such instruments and its intention to honor such obligationsAgreement Date.
(b) For ten Cenovus will maintain or cause to be maintained in effect for six years from the Effective Time, policies of directors' and after officers' liability insurance providing coverage comparable to the Closing Date, coverage provided by the Company shall maintain directors' and officers' policies obtained by Husky that are in effect immediately prior to the current provisions regarding limitation Effective Time and providing coverage in respect of claims arising from facts or events that occurred on or prior to the Effective Time and which will cover all claims made prior to the Effective Date or within six years of the Effective Date. Prior to the Effective Time, Husky may, in the alternative, purchase run off directors' and officers' liability insurance for the benefit of its officers and directors and indemnification ofhaving a coverage period of up to six years from the Effective Time, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as event Cenovus will not have any such amendment does not materially and adversely affect the Sellerfurther obligation under this Section 7.7.
(c) For ten years from and after In the Closing Date, the Company event that Cenovus or any of its successors or assigns shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) consolidate with or merge or amalgamate into any other Person and shall not be the Company expressly agrees in writing to the Seller thatcontinuing or surviving company or entity of such consolidation, as between the two, the Company is solely obligated to satisfy and discharge the Claim, merger or amalgamation or (ii) the Company makes reasonably adequate transfer all or substantially all of its properties and assets to any Person, then, and in each such case, Cenovus shall cause proper provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, be made so that the Company shall forfeit the right to control the defense successor and assign of Cenovus or settlement of any such claim if, at any time after assuming the defense all or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller substantially all of its intent to do soproperties and assets, and as the Seller shall reasonably cooperatecase may be, at assumes the expense of the Company, obligations set forth in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable ProxySection 7.7.
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Insurance and Indemnification. (a) The Company hereby acknowledges its indemnification obligations Prior to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity AgreementEffective Time, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company Greenbrook shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current purchase customary “tail” policies of directors’ and officers’ liability insurance from a reputable and financially sound insurance carrier and containing terms and conditions no less favourable in the aggregate to the protection provided by the policies maintained by Greenbrook and its Subsidiaries which are in effect immediately prior to the Company at not less than current levels with Effective Date and providing protection in respect to acts of claims arising from facts or omissions occurring events which occurred on or prior to the SellerEffective Time and Greenbrook will and will cause its Subsidiaries to, maintain such “tail” policies in effect without any reduction in scope or coverage for six years from the Effective Time; provided, that Greenbrook and its Subsidiaries shall not be required to pay any amounts in respect of such coverage prior to the Effective Time and provided further that the cost of such policies shall not exceed 300% of Greenbrook’s resignation as a director current annual aggregate premium for policies currently maintained by Greenbrook or its Subsidiaries.
(b) Greenbrook will, and will cause its Subsidiaries to, honour all rights to indemnification or exculpation now existing in favour of present and former employees, officers and directors of Greenbrook and its Subsidiaries under Law and under the articles or other constating documents of Greenbrook and/or its Subsidiaries or under any agreement or contract of any indemnified person with Greenbrook or with any of its Subsidiaries, and acknowledges that such rights shall survive the completion of the Company (provided Plan of Arrangement, and, to the extent within the control of Greenbrook, Greenbrook shall ensure that the Company may substitute therefor policies same shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of at least any such indemnified person and shall continue in full force and effect in accordance with their terms for a period of not less than six years from the same coverage Effective Date.
(c) From and amounts containing terms following the Effective Time, Neuronetics will cause Greenbrook to comply with its obligations under Section 5.11(a) and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AXSection 5.11(b).
(d) The Company If Neuronetics, Greenbrook or any of its Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not a continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, Neuronetics shall indemnifyensure that any such successor or assign (including, hold harmless and defend the Seller against as applicable, any and acquirer of substantially all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares properties and the Options. This indemnification obligation is separate and apart from assets of Greenbrook or its Subsidiaries) assumes all of the obligations referred to set forth in the above paragraphs this Section 5.11.
(e) The provisions of this Section 15 5.11 are intended for the benefit of, and shall apply be enforceable by, each insured or indemnified Person, his or her heirs and his or her legal representatives and, for such purpose, Xxxxxxxxxx hereby confirms that it is acting as trustee on their behalf, and agrees to any and all such Claims whether or not arising out ofenforce the provisions of this Section 5.11 on their behalf. Furthermore, based upon or related to this Section 5.11 shall survive the Seller’s service termination of this Agreement as a director result of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller occurrence of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has Effective Date for a conflict period of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxysix years.
Appears in 1 contract
