Insurance Indemnity. (a) For six years from the Effective Time, the Surviving Corporation shall maintain in effect the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; provided, however, that in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount. (b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser. (c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification. (d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries. (e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld. (f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 3 contracts
Samples: Merger Agreement (Hughes Electronics Corp), Agreement and Plan of Merger (Telocity Delaware Inc), Merger Agreement (Telocity Delaware Inc)
Insurance Indemnity. (a) For Purchaser will cause the Surviving Corporation to purchase a six years from year pre-paid noncancellable directors and officers insurance policy covering the current and all former directors, officers and similar persons of the Company and its Subsidiaries, with respect to acts or failures to act prior to the Effective Time, in a single aggregate amount over the Surviving Corporation shall maintain in effect six-year period immediately following the Closing Date equal to the policy limit for the Company's current directors and its Subsidiaries' current directors' and officers' liability officers insurance policies policy as of the date hereof (the "PoliciesCurrent Policy") covering those persons -------- who are currently ). If such insurance is obtainable at an annual cost per -------------- covered year not in excess of 200% of the annual premium paid by the Policies Company for the Current Policy (the "Cap"), then Purchaser will cause the Surviving --- Corporation to purchase policies providing (or Purchaser will modify its existing policies to provide for) at least the same coverage as the Current Policy and containing terms and conditions no less advantageous to the current and former directors, officers and similar persons of the Company and its Subsidiaries than the Current Policy with respect to actions acts or omissions occurring failures to act prior to the Effective Time; provided, however, that in no event shall Purchaser and the Surviving -------- ------- the Surviving Corporation shall not be required to expend in any one year obtain policies providing such coverage except to the extent that such coverage can be provided at an amount annual cost of no greater than the Cap; and, if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverageCap, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, Purchaser or the Surviving Corporation shall only be obligated required to obtain policies with as much coverage as can be obtained by paying an annual premium equal to the greatest coverage available for a cost not exceeding such amountCap.
(b) The Purchaser shall cause the Surviving Corporation shall to keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the Purchaser -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in ------ connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after ---------- the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation Purchaser shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) If, after the Effective Time, Purchaser or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties or assets to any person, then, in each such case, proper provisions shall be made so that successors and assigns of Purchaser or the Surviving Corporation, as the case may be, shall assume such entity's obligations set forth in this Section 8.6. The provisions of this Section 8.6 ----------- ----------- are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that which counsel shall be reasonably acceptable to the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") ), provided that the Indemnified -------------- ----------------- Party shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, -------- ------- that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable transfers outside of the ordinary course of business a material portion of its assets, in a single transaction or in a series of transactions, and such transfer materially and adversely affects the legal or financial ability of the Surviving Corporation to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 3 contracts
Samples: Merger Agreement (Avery Dennison Corporation), Merger Agreement (Quad-C Inc), Merger Agreement (Stimsonite Corp)
Insurance Indemnity. (a) For six years from Prior to the Effective TimeAdjustment Date, the Surviving Corporation Emerald shall maintain in effect the Company's and its Subsidiaries' current purchase one or more prepaid directors' and officers' liability insurance policies (the "Policies") covering those persons -------- Persons who are currently covered by Emerald's existing directors' and officers' insurance policies, which Policies provide such directors and officers with substantially similar insurance coverage as Emerald's existing directors' and officers' insurance policies for an aggregate period of six (6) years following the Policies Effective Time with respect to actions claims arising from facts or omissions occurring prior to events that occurred on or before the Effective Time; provided, however, that in no event the aggregate premium for such Policies shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of not exceed 150% of the annual premiums currently paid by the Company and Emerald under its Subsidiaries current policies for such insurance coverage, and, provided further, coverage and that if Emerald shall give Phoenix the -------- ------- annual premiums opportunity to negotiate with the relevant insurers over the amount of such insurance coverage exceed such amount, premium. Phoenix shall cause the Surviving Corporation shall be obligated to obtain policies with maintain in effect for not less than six (6) years after the greatest coverage available for a cost not exceeding Effective Time such amountPolicies.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for For a period of not less than six (6) years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of after the Effective Time, until such matters are finally resolvedPhoenix shall cause the Surviving Corporation to indemnify, defend and hold harmless the directors and officers of Emerald (each, an "Indemnified Party") that provide for exculpation against all Liabilities arising out of director and officer liability and indemnification (and advancement of expenses related thereto) actions or omissions arising out of the past Indemnified Party's service or services as directors and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except Certificate of Incorporation and Bylaws of Emerald as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to effect on the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Timehereof. Without limiting the foregoing, in any case in which approval by the Surviving Corporation is required to effectuate any indemnification, the Surviving Corporation shall periodically advance expenses as incurred with respect to direct, at the foregoing to election of the fullest extent permitted under applicable law provided Indemnified Party, that the person determination of any such approval shall be made by independent counsel mutually agreed upon between Phoenix and the Indemnified Party.
(c) Any Indemnified Party wishing to whom claim indemnification under paragraph (b) of this Section 8.13, upon learning of any such Liability or Litigation, shall promptly notify Phoenix and the Surviving Corporation thereof. In the event of any such Litigation (whether arising before or after the Effective Time), (i) Phoenix or the Surviving Corporation shall have the right to assume the defense thereof and neither Phoenix nor the Surviving Corporation shall 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 Phoenix or the Surviving Corporation elects not to assume such defense or counsel for the Indemnified Parties advises that there are advanced provides an undertaking substantive issues which raise conflicts of interest between Phoenix or the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to repay them, and Phoenix or the Surviving Corporation shall pay all reasonable fees and expenses of such advance counsel for the Indemnified Parties promptly as statements therefor are received; provided, that Phoenix and the Surviving Corporation shall be obligated pursuant to this paragraph (c) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction, (ii) the Indemnified Parties shall cooperate in the defense of any such Litigation, and (iii) neither Phoenix nor the Surviving Corporation shall be liable for any settlement effected without its prior written consent; and provided further that neither Phoenix nor the Surviving Corporation shall have any obligation hereunder to any Indemnified Party when and if it a court of competent jurisdiction shall determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is ultimately determined that such person is not entitled to indemnificationprohibited by applicable Law.
(d) The provisions of this Section 8.6 8.13 are intended to be for the benefit of of, and ----------- shall be enforceable by by, 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheldtheir respective heirs and representatives.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 2 contracts
Samples: Merger Agreement (Elastic Networks Inc), Merger Agreement (Paradyne Networks Inc)
Insurance Indemnity. (a) For six Purchaser will cause the Surviving Corporation to maintain in effect for not less than three years from after the Effective Time, the Surviving Corporation shall maintain in effect Company's current directors and officers insurance policies, if such insurance is obtainable (or policies of at least the same coverage containing terms and conditions no less advantageous to the current and all former directors and officers of the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions acts or omissions occurring failures to act prior to the Effective Time, including acts relating to the transactions contemplated by this Agreement; provided, however, that in no event shall -------- ------- order to maintain or procure such coverage, Purchaser and the Surviving Corporation shall not be required to expend in any one year maintain or obtain policies providing such coverage except to the extent such coverage can be provided at an amount in excess annual cost of 150% of no greater than 1.5 times the most recent annual premiums currently premium paid by the Company prior to the date hereof (the "Cap"); and its Subsidiaries for such insurance coverageprovided, and, provided further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the -------- ------- Cap, Purchaser or the Surviving Corporation shall only be required to obtain as much coverage as can be obtained by paying an annual premiums premium equal to the Cap.
(b) From and after the Effective Time, Purchaser and the Surviving Corporation shall indemnify and hold harmless each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer or director of the Company or any of its Subsidiaries (each, an "Indemnified Party"), in connection with any claim, action, suit, proceeding or investigation (an "Action") arising out of or pertaining to acts or omissions by them in their capacities as such, which acts or omissions occurred prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, at least to the extent that such insurance coverage exceed Indemnified Party is presently indemnified by the Company. In the event of any such amountAction, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, which counsel shall be reasonably acceptable to the Indemnified Party; provided, however, that the Indemnified Party shall be permitted to participate in the defense of such Action through counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to the Surviving Corporation, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any conflict between the Surviving Corporation and any Indemnified Parties or there are additional defenses available to any Indemnified Parties, the Indemnified Parties shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Parties, which counsel shall be reasonably acceptable to the Surviving Corporation, and Purchaser shall cause the Surviving Corporation to pay the reasonable fees and expenses of such counsel, as accrued and in advance of the final disposition of such Action to the fullest extent permitted by applicable law; provided, however, that the Surviving Corporation shall not be obligated to obtain policies with pay the greatest coverage available reasonable fees and expenses of more than one counsel for a cost not exceeding all Indemnified Parties in any single Action except to the extent that, in the opinion of counsel for the Indemnified Parties, two or more of such amount.
(b) Indemnified Parties have conflicting interests in the outcome of such Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(c) Purchaser shall cause the Surviving Corporation promptly to adopt and keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case Surviving Corporation's certificate of matters occurring prior incorporation and by-laws to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries at least to the fullest extent permitted they are presently indemnified by the DGCL, which Company and such provisions shall not be amended except as either required by applicable law Law or except to make changes permitted by law Law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, . Purchaser shall cause the Surviving Corporation to comply with the terms and shall observe the conditions of all existing indemnification agreements existing in favor of past and present with the Company's officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaserdirectors.
(cd) Subject to Section 8.6(f)If Parent, from and after Purchaser or the Effective Time, the -------------- Surviving Corporation or any of their respective successors or assigns (i) shall indemnify consolidate with or merge into any other corporation or other entity and hold harmless, to shall not be the fullest extent permitted under applicable law, each person who is, continuing or has been at any time prior to the date hereof surviving corporation or who becomes prior to the Effective Time, an officer, director or similar person entity of the Company consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any Subsidiaryindividual, against all lossescorporation or other entity, claimsthen and in each such case, damagesproper provisions shall be made so that the successors and assigns of Parent, liabilities, costs Purchaser or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to assume all of the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnificationobligations set forth in this Section 6.8.
(de) The provisions of this Section 8.6 6.8 are intended to be for the benefit of of, and ----------- shall be enforceable by by, 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, director or similar person of the Company or any of its SubsidiariesIndemnified Parties, their heirs and their representatives.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 2 contracts
Samples: Merger Agreement (Marcam Solutions Inc), Merger Agreement (M Acquisition Corp)
Insurance Indemnity. (a) For six years from the Effective Time, the Surviving Corporation shall maintain in effect the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; provided, however, that in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from From and after the Effective Time, the -------------- Surviving Corporation Holding Company shall indemnify indemnify, defend and hold harmless, harmless to the fullest extent that CRA or OSI would have been permitted under applicable law, law each person who isis now, or has been at any time prior to the date hereof or who becomes prior to the Effective Timehereof, an officerofficer or director of CRA or OSI (individually, director or similar person of an "Indemnified Party" and collectively, the Company or any Subsidiary"Indemnified Parties"), against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedings, ------ arbitrations, investigations proceeding or audits (collectively, "Litigation") investigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts such occurring at or omissions occurred prior to the Effective Time. Without limiting In the foregoingevent of any such claim, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by each person who is now or has been at any time prior to the date of this Agreementaction, suit, proceeding, or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any of its Subsidiaries.
investigation (e) If any Litigation described in Section 8.6(c) (each, an "Action"), (i) -------------- ------ arises or occursany Indemnified Party wishing to claim indemnification shall promptly notify Holding Company thereof, (ii) Holding Company shall pay the Surviving Corporation shall control the defense reasonable fees and expenses of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party which counsel shall be reasonably acceptable to Holding Company, in advance of the final disposition of any such Action to the full extent permitted to participate by applicable law, upon receipt of any undertaking required by applicable law, and (iii) Holding Company will cooperate in the defense of any such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expensematter; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation Holding Company shall not be liable for any settlement effected without its written consentconsent and provided, which consent further, that Holding Company shall not unreasonably be withheldobligated pursuant to this Section to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single Action except to the extent that, in the opinion of counsel for the Indemnified Parties, two or more of such Indemnified Parties have conflicting interests in the outcome of such action.
(fb) Purchaser Holding Company shall have no obligations under Section 8.6(c)keep in effect, unless and -------------- until shall cause the Surviving Corporation is unable surviving corporation of the CRA Merger to satisfy keep in effect, provisions in its Articles or Certificate of Incorporation or Organization and Bylaws providing for exculpation of director and officer liability and its indemnification of the Indemnified Parties to the fullest extent permitted under applicable law, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enlarge the Indemnified Parties' rights of exculpation and indemnification.
(c) For a period of six years after the Effective Time, Holding Company shall cause to be maintained officers' and directors' liability insurance covering the Indemnified Parties who are currently covered, in their capacities as officers and directors, by CRA's or OSI's existing officers' and directors' liability insurance policies on terms materially no less advantageous to the Indemnified Parties than such existing insurance; provided, however, that Holding Company shall not be required in order to maintain or procure such coverage to pay an annual premium for either CRA or OSI in excess of one and one-half times the current annual premium paid by OSI for its existing coverage (the "Cap") (which current annual premium is approximately $110,000); and provided, further, that if equivalent coverage cannot be obtained for CRA or OSI, or can be obtained only by paying an annual premium in excess of the Cap, Holding Company shall only be required to obtain as much coverage for CRA or OSI as can be obtained by paying an annual premium equal to such Cap.
(d) In the event that Holding Company 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, in each such case, proper provisions shall be made so that the successors and assigns of Holding Company shall assume the obligations under set forth in this Section 8.67.12.
(e) The provisions of this Section shall survive the consummation of the Mergers and expressly are intended to benefit each of the Indemnified Parties. -----------The foregoing provisions of this Section 7.12 shall not limit or impair the rights of the Indemnified Parties arising under any indemnification or other agreements to which they are a party, the charter, bylaws or other organizational documents of CRA and OSI and their respective Subsidiaries or applicable laws.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Occusystems Inc), Agreement and Plan of Reorganization (Cra Managed Care Inc)
Insurance Indemnity. (a) For Parent will cause the Surviving Corporation to maintain in effect for not less than six (6) years from after the Effective Time, the Surviving Corporation shall maintain in effect the Company's and its Subsidiaries' current directors' directors and officers' liability insurance policies (or policies of at least the "Policies"same coverage containing terms and conditions no less advantageous to the current and all former directors and officers of the Company) covering those persons -------- who are currently covered by the Policies with respect to actions acts or omissions occurring failures to act prior to the Effective Time, including acts relating to the transactions contemplated by this Agreement; provided, however, that in no event shall -------- ------- Parent and the Surviving Corporation shall not be required to expend in any one year maintain or obtain policies providing such coverage except to the extent such coverage can be provided at an amount in excess annual cost of 150no greater than 200% of the most recent annual premiums currently premium paid by the Company prior to the date hereof (the "Cap"); and its Subsidiaries for such insurance coverageprovided, and, provided further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the -------- ------- annual premiums of such insurance coverage exceed such amountCap, Parent or the Surviving Corporation shall only be obligated required to obtain policies with as much coverage as can be obtained by paying an annual premium equal to the greatest coverage available for a cost not exceeding such amountCap.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from From and after the Effective Time, Parent and the -------------- Surviving Corporation shall jointly and severally indemnify and hold harmless, harmless to the fullest extent permitted under applicable lawLaw, each person Person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, officer or director or similar person of the Company or any Subsidiaryof its Subsidiaries (each, an "INDEMNIFIED PARTY") against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedings, ------ arbitrations, investigations proceeding or audits (collectively, "Litigation") investigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by each person who is now whether asserted or has been claimed prior to, at any time prior to the date of this Agreement, or who becomes prior to after the Effective Time. In the event of any such claim, an officeraction, director suit, proceeding or similar person of the Company or any of its Subsidiaries.
investigation (e) If any Litigation described in Section 8.6(c) (each, an "ActionACTION") -------------- ------ arises or occurs), the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, providedwhich counsel shall be reasonably -29- acceptable to the Indemnified Party; PROVIDED, HOWEVER, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") Party shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party Parties or there are additional defenses available to any Indemnified PartyParties, such the Indemnified Party Parties shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at Parties and Parent shall cause the Surviving Corporation's expenseCorporation to pay the reasonable fees and expenses of such counsel, as accrued and in advance of the final disposition of such Action to the fullest extent permitted by applicable law; providedPROVIDED, howeverHOWEVER, that the Surviving Corporation shall not be obligated to pay -------- ------- the reasonable fees and expenses of more than one counsel (in addition to any necessary local counsel) for any all Indemnified Party Parties in any single Action except to the extent that Indemnified Parties have conflicting interests in the outcome of such Action.
(c) Parent shall cause the Surviving Corporation to keep in effect in its Certificate of Incorporation and By-Laws provisions at least as favorable as the provisions in the Company's Certificate of Incorporation and By-Laws that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company to the fullest extent permitted by the DGCL and such provisions shall not be amended except as either required by applicable Law or to make changes permitted by Law that would enhance the rights of past or present officers and directors to exculpation, indemnification or advancement of expenses.
(d) If Parent or the Surviving Corporation or any of their respective successors or assigns: (i) shall consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall 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 Parent or the Surviving Corporation shall assume all of the obligations set forth in this Section 5.8.
(e) The provisions of this Section 5.8 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives, and shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, pursuant to Law, contract or otherwise. The Surviving Corporation shall not pay all expenses, including attorneys' fees, that may be incurred by any Indemnified Party in enforcing the indemnity obligations provided for in this Section 5.8.
(f) Notwithstanding anything to the contrary in this Section 5.8, neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent, which consent shall not be unreasonably be withheldwithheld or delayed.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 2 contracts
Samples: Merger Agreement (Integrated Defense Technologies Inc), Merger Agreement (Integrated Defense Technologies Inc)
Insurance Indemnity. (a) For six years All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time existing in favor of the current or former directors or officers of the Company or each of its Subsidiaries as provided in their respective articles of incorporation or bylaws (or comparable organizational documents) will be assumed by Parent and Parent will be directly responsible for such indemnification, without further action, as of the Effective Time and will continue in full force and effect in accordance with their respective terms. In addition, from and after the Effective Time, directors and officers of the Company who become or remain directors or officers of Parent or the Surviving Corporation shall will be entitled to the same indemnity rights and protections (including those provided by directors' and officers' liability insurance) of Parent. Notwithstanding any other provision hereof, the provisions of this Section 5.8 (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
(b) Parent will, and will cause the Surviving Corporation to, maintain in effect for not less than six years after the Company's and its Subsidiaries' current Effective Time policies of directors' and officers' liability insurance policies equivalent in all material respects to those maintained by or on behalf of the Company and its Subsidiaries on the date hereof (and having at least the "Policies") covering those persons -------- who same coverage and containing terms and conditions which are no less advantageous to the Persons currently covered by the Policies such policies as insured) with respect to actions matters existing or omissions occurring at or prior to the Effective Time; , provided, however, that in no event shall -------- ------- if the Surviving Corporation be required to expend in aggregate annual premiums for such insurance at any one year an amount in excess of 150time during such period exceed 200% of the annual premiums per annum rate of premium currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by each person who is now or has been at any time prior to on the date of this Agreement, or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, then Parent will cause the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporationto, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between and the Surviving Corporation and any Indemnified Party or there are additional defenses will, provide the maximum coverage that is then available at an annual premium equal to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense 200% of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheldrate.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 2 contracts
Samples: Merger Agreement (Fingerhut Companies Inc), Merger Agreement (Federated Department Stores Inc /De/)
Insurance Indemnity. (a) For Parent will maintain in effect with a carrier reasonably acceptable to the Company for not less than six years from after the Effective Time, the Surviving Corporation shall maintain in effect Company's current directors and officers insurance policies, if such insurance is obtainable (or policies of at least the same coverage containing terms and conditions no less advantageous to the current and all former directors and officers of the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions acts or omissions occurring failures to act prior to the Effective Time, including acts relating to the transactions contemplated by this Agreement; provided, however, that in no event order to maintain or procure such coverage, Parent shall -------- ------- the Surviving Corporation not be required to expend in any one year maintain or obtain policies providing such coverage except to the extent such coverage can be provided at an amount in excess annual cost of 150% of no greater than two times the most recent annual premiums currently premium paid by the Company prior to the date hereof (the "Cap"); and its Subsidiaries for such insurance coverageprovided, and, provided further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the -------- ------- annual premiums of such insurance coverage exceed such amountCap, the Surviving Corporation Parent shall only be obligated required to obtain policies with as much coverage as can be obtained by paying an annual premium equal to the greatest coverage available for a cost not exceeding such amountCap.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from From and after the Effective Time, the -------------- Surviving Corporation Parent shall indemnify and hold harmless, harmless to the fullest extent permitted under applicable law, each person Person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, officer or director or similar person of the Company or any Subsidiaryof its Subsidiaries (each, an "Indemnified Party") against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedings, ------ arbitrations, investigations proceeding or audits (collectively, "Litigation") investigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by each person who is now whether asserted or has been claimed prior to, at any time prior to the date of this Agreement, or who becomes prior to after the Effective Time. In the event of any such claim, an officeraction, director suit, proceeding or similar person of the Company or any of its Subsidiaries.
investigation (e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs), the Surviving Corporation Parent shall control the defense of such Action with counsel selected by the Surviving CorporationParent, which counsel shall be reasonably acceptable to the Indemnified Party; provided, however, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") Party shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to the Parent, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation Parent and any Indemnified Party Parties or there are additional defenses available to any Indemnified PartyParties, such the Indemnified Party Parties shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified PartyParties, at which counsel shall be reasonably acceptable to the Surviving Corporation's expenseParent, and Parent shall cause Parent to pay the reasonable fees and expenses of such counsel, as accrued and in advance of the final disposition of such Action to the fullest extent permitted by applicable law; provided, however, that the Surviving Corporation Parent shall not be obligated to pay -------- ------- the reasonable fees and expenses of more than one counsel for any all Indemnified Party Parties in any single Action except to the extent that, in the opinion of counsel for the Indemnified Parties, two or more of such Indemnified Parties have conflicting interests in the outcome of such Action. The Surviving Corporation Parent shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(fc) Purchaser The Surviving Corporation shall have no obligations under Section 8.6(c), unless keep in effect all provisions in its articles of organization and -------------- until by-laws that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company to the fullest extent permitted by the MBCL and such provisions shall not be amended except as either required by applicable law or to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses.
(d) If the Surviving Corporation is unable or any of its respective successors or assigns (i) shall consolidate with or merge into any other corporation or other entity and shall not be the continuing or surviving corporation or entity of the consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to satisfy its indemnification any individual, corporation or other entity, then and in each such case, proper provisions shall be made so that the successors and assigns of the Surviving Corporation shall assume all of the obligations under set forth in this Section 8.6. -----------6.8.
(e) The provisions of this Section 6.8 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 2 contracts
Samples: Merger Agreement (Minnesota Mining & Manufacturing Co), Merger Agreement (Minnesota Mining & Manufacturing Co)
Insurance Indemnity. (a) For a period of six years from after the Effective Time, Purchaser shall cause to be maintained officers' and directors' liability insurance covering the Surviving Corporation shall maintain parties who are currently covered, in effect their capacities as officers and directors, by the Company's and its Subsidiaries' current directorsexisting officers' and officersdirectors' liability insurance policies (the "Current Policies") covering those persons -------- who are currently covered by the Policies with respect on terms substantially no less advantageous to actions or omissions occurring prior to the Effective Timesuch parties than such Current Policies; provided, however, that Purchaser shall not be required, in no event shall -------- ------- order to maintain or procure such coverage, to pay annual premiums in excess of 200% of the Surviving Corporation aggregate annual premiums paid by the Company for the Current Policies during 1996 (the "Cap"); and provided, further, that if equivalent coverage cannot be required to expend in any one year obtained, or can be obtained only by paying an amount in excess of 150% of the Cap, Purchaser shall only be required to obtain such coverage for such six-year period as can be obtained by paying annual premiums currently paid by equal to the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amountCap.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from From and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, officer or director or similar person of the Company or any Subsidiary, of its Subsidiaries against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") Litigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Company and after the Effective Time the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(dc) The provisions of this Section 8.6 are intended for If the benefit of and ----------- Merger shall be enforceable by each person who is now or has have been at any time prior consummated, the Surviving Corporation shall, to the date of this Agreementfullest extent permitted under applicable law, indemnify and hold harmless Purchaser and any person or entity who becomes prior to the Effective Time, was an officer, director or similar person affiliate of Purchaser prior to the Effective Time against any Losses in connection with any Litigation arising out of or pertaining to any of the Company or any of its Subsidiariestransactions contemplated by this Agreement.
(ed) If any Litigation described in paragraph (b) or (c) of this Section 8.6(c) 8.8 (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that which counsel shall be reasonably acceptable to the -------- party seeking indemnification pursuant to paragraph (b) or (c) of this Section 8.6(c) 8.8 (each, an "Indemnified -------------- ----------- Party") ); provided that the Indemnified Party shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to the Surviving Corporation, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party Parties or there are additional defenses available to any Indemnified PartyParties, such the Indemnified Party Parties shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified PartyParties, at which counsel shall be reasonably acceptable to the Surviving Corporation's expense, and the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, provided that the Surviving Corporation shall not be obligated to pay -------- ------- the reasonable fees and expenses of more than one counsel for any all Indemnified Party Parties in any single Action except to the extent that, in the opinion of counsel for the Indemnified Parties, two or more of such Indemnified Parties have conflicting interests in the outcome of such Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 2 contracts
Samples: Merger Agreement (Procter & Gamble Co), Merger Agreement (Procter & Gamble Co)
Insurance Indemnity. (a) For six years Tenant shall, at Tenant's sole cost -------------------- and expense, carry and keep in force at all times during the Term (i) a policy of comprehensive general public liability insurance, together with a contractual liability endorsement, with limits of not less than $1,000,000 in respect of bodily injury to or death of any one person, an amount not less than $2,000,000 in respect to bodily injuries or death(s) occurring in any one occurrence and an amount not less than $500,000 in respect of property damaged or destroyed; (ii) fire and extended coverage insurance covering the full replacement cost of all alterations, additions, partitions, improvements, equipment, furniture, fixtures and inventory made or placed by Tenant in the Lease Premises against "all-risk" of physical loss; (iii) worker's compensations insurance with limits not less than that required by law; and (iv) such additional amounts of insurance and additional types of coverage as Landlord may reasonably request from time to time. Tenant's liability hereunder shall not be limited to the Effective Timeinsurance coverage maintained, or required to be maintained pursuant hereto by Tenant. All such policies shall be with companies licensed to do business in the state in which the Land is located, and from a responsible company satisfactory to Landlord, and contain a waiver of subrogation as contemplates in Section 10(d) below. Landlord, and Landlord's Mortgagee if requested by Landlord, shall be named as additional insurers under such insurance policies. All such insurance policies shall be primary and non-contributing with any insurance carried by the Landlord, shall be written on an "occurrence" basis and not on a "claims-made" basis, and shall contain endorsements requiring 45 days' notice to Landlord prior to any cancellation or any reduction in amount of coverage. Tenant shall deliver to Landlord as a condition precedent to Tenant's taking occupancy of the Leased Premises (but not to Tenant's obligation to pay Rent), A complete duplicate copy of all such policies maintained by Tenant, and shall also deliver copies thereof to Landlord not less than 30 days prior to the expiration date of each such policy. Tenant's failure to comply with any of the requirements of this Section 10(a) shall be an Event of Default.
(b) Neither Landlord, nor any of the Landlord's partners, officers, members, directors, agents or employees, shall, to the extent permitted by law, have any liability to Tenant, or to Tenant's Agents, for any damage, injury, loss or claim based on or arising out of any cause whatsoever, including, without limitation, the Surviving Corporation following; repair to any portion of the Leased Premises, Building or Common Areas; interruption in the use of the Leased Premises or any equipment therein; any accident or damage resulting from any use or operation by Landlord, Tenant or any person or entity of heating, cooling, electrical, sewerage or plumbing equipment or apparatuses; termination of this Lease by Landlord for damage to the Lease Premises or the Building; fire, robbery, theft, vandalism, mysterious disappearance or any other casualty; actions of any other tenant of the Building or of any other person or entity; failure or inability to furnish any service specified in this Lease; and leakage in any part of the Leased Premises or the Building from water, rain, ice or snow that may leak into, or flow from, any part of the Leased Premises or the Building, or from drains, pipes or plumbing fixtures in the Leased Premises or the Building. Notwithstanding the foregoing, Landlord shall maintain not except as set forth in effect Section 10(d) below or elsewhere herein, be released from liability to Tenant for any injury caused by Landlord's willful misconduct or gross negligence. In no event, however, shall Landlord have any liability to Tenant on account of any claims for the Companyinterruption of or loss to Tenant's business or for any indirect damages or consequential losses.
(c) Tenant shall, to the extent permitted by law, reimburse Landlord for, and shall defend (upon Landlord's request), indemnify and hold Landlord, its Subsidiariespartners, officers, members, directors, employees and agents harmless from and against, any and all costs, damages, claims, liabilities, expenses (including, but not limited to, attorneys' current directors' fees and officers' liability insurance policies court and litigation costs), losses, demands, actions, causes of action, judgements, proceedings and obligations of any nature whatsoever suffered by or claimed against Landlord, directly or indirectly, resulting from, based on or arising out of, in whole or in part, (i) the "Policies"possession, use and/or occupancy of the Leased Premises or the business conducted therein or therefrom (whether or not damage or loss occurs in or on the Leased Premises, the Common Areas or elsewhere); (ii) covering those persons -------- who are currently covered by any act or omission of Tenant, or any of Tenant's Agents; and/or (iii) any breach of the Policies provisions of Section 28(u) hereof). The provisions of Section 10(b) above and this Section 10(e) shall survive the expiration or sooner termination of this Lease with respect to actions any claims, liabilities and the like attributable to acts, omissions, occurrences and/or conditions existing or omissions occurring prior to such expiration or termination.
(d) Without limiting the Effective Timeprovisions of Section 10(b) above or any other provisions hereof as to Landlord, Landlord and Tenant each hereby release the other from any and all liability or responsibility to the other or any one claiming through or under them, by way of subrogation or otherwise, from or with respect to any loss or damage to property caused by fire or any other perils insured under policies of insurance covering such property (but only to the extent of the insurance proceeds payable under such policies), even if such loss or damage is attributable to the fault or negligence of the other party, or anyone for whom such party may be responsible, including any other tenants or occupants of the Building. The foregoing notwithstanding, this mutual release shall be applicable and in force and effect only to the extent lawful at the time any claim is made, and in any event only with respect to loss or damage occurring during such times as the releasor's policies shall contain a clause or endorsement providing that any such release shall not adversely affect or impair said policies or prejudice the right of the releasor to recover thereunder. Landlord and Tenant shall request their respective insurance carriers to include in its policies such a clause or endorsement. If additional cost shall be charged therefor, the party responsible for procuring such insurance shall pay such additional costs. If Tenant fails to obtain or maintain any such property insurance policies as required hereunder, Tenant's release of Landlord shall remain and be deemed in full force and effect as to the coverage thereof as if such policies, and an insurer's waiver of subrogation endorsement, were obtained and in full force and effect; provided, however, that in no event nothing herein shall -------- ------- the Surviving Corporation be excuse Tenant's failure to maintain any insurance required to expend in hereunder or constitute a waiver or limitation of any one year an amount in excess other rights and remedies of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, Landlord in the case of matters occurring prior event Tenant fails to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchasermaintain any insurance.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 2 contracts
Samples: Lease Agreement (Equinix Inc), Lease Agreement (Equinix Inc)
Insurance Indemnity. (a) For six years from the Effective Time, the Surviving Corporation shall maintain in effect the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; provided, however, that in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from From and after the Effective Time, -------------------- Parent will cause the -------------- Surviving Corporation shall indemnify to indemnify, defend and hold harmless, to the fullest extent permitted that the Company would be required under its certificate of incorporation, by-laws, indemnification agreements with its officers and directors (the "Indemnification Agreements") and applicable law, each person who is, is now or has been at any time was during the past six months prior to the date hereof an officer or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary(individually, an "Indemnified Party" and collectively, the "Indemnified Parties"), against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedings, ------ arbitrations, investigations proceeding or audits (collectively, "Litigation") investigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts such occurring at or omissions occurred prior to the Effective Time. Without limiting In the foregoingevent of any such claim, action, suit, proceeding or investigation (an "Action"), any Indemnified Party wishing to claim indemnification will promptly notify the Surviving Corporation thereof (provided that failure to so notify the Surviving Corporation will not affect the obligations of the Surviving Corporation to provide indemnification except to the extent that the Surviving Corporation shall have been prejudiced as a result of such failure). With respect to any Action for which indemnification is requested, the Surviving Corporation shall periodically advance expenses will be entitled to participate therein at its own expense and, except as incurred with respect otherwise provided below, to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occursmay wish, the Surviving Corporation shall control may assume the defense thereof, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Surviving Corporation to the Indemnified Party of its election to assume the defense of an Action, the Surviving Corporation will not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, other than as provided below. The Surviving Corporation will not settle any Actions without the consent of the Indemnified Party where such Action with settlement includes an admission of civil or criminal liability on behalf of an officer or director or requires any payment to be made by the Indemnified Party. The Indemnified Party will have the right to employ counsel selected in any Action, but the fees and expenses of such counsel incurred after notice from the Surviving Corporation of its assumption of the defense thereof will be at the expense of the Indemnified Party, unless (i) the employment of counsel by the Indemnified Party has been authorized by the Surviving Corporation, provided, (ii) the Indemnified Party will have reasonably concluded upon the advice of counsel that there may be a conflict of interest between the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate Party and the Surviving Corporation in the conduct of the defense of such Action through ----- an Action, or (iii) the Surviving Corporation shall not in fact have employed counsel to assume the defense of an Action, in each of which cases the reasonable fees and expenses of counsel selected by the Indemnified Party, Party will be at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense expense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------Notwithstanding the
Appears in 1 contract
Insurance Indemnity. (a) For six years from At the Effective Time, the certificate of incorporation and bylaws of the Surviving Corporation will include indemnification provisions substantially equivalent to those contained in the certificate of incorporation and bylaws of the Company as of the date of this Agreement. The indemnification provisions in the certificate of incorporation and bylaws of the Surviving Corporation shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of individuals who as of the date hereof were directors, officers, employees, fiduciaries or agents of the Company or its Subsidiaries or who otherwise would be entitled to indemnification under the certificate of incorporation, bylaws or indemnification agreements of the Company or its Subsidiaries (the "Indemnified Parties"). Notwithstanding any other provision hereof, the provisions of this Section 5.7 are intended to be for the benefit of, and will be enforceable by, each Indemnified Party, his or her heirs and his or her representatives.
(b) The Company and the Surviving Corporation, as applicable, will maintain in effect for not less than six years after the Company's and its Subsidiaries' current Offer Completion Date policies of directors' and officers' liability insurance policies (containing terms and conditions with respect to coverage and amount which are no less advantageous to the "Policies") covering those persons -------- who are Persons currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; provided, however, that in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries as insured) with respect to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law matters existing or except to make changes permitted by law that would enhance the rights of past occurring at or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' feesOffer Completion Date; provided that in satisfying its obligations under this Section 5.7(b), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- annual premiums in excess of 200% of the fees and expenses of more than one counsel amount per annum the Company paid for any Indemnified Party in any single Action. The the fiscal year ending December 31, 1999, and; provided further, that if the premium for such coverage exceeds such amount, Parent or the Surviving Corporation shall not be liable purchase a policy with the greatest coverage available for any settlement effected without such 200% of the amount spent per annum by the Company for its written consentfiscal year ending December 31, which consent shall not unreasonably be withheld1999.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Samples: Merger Agreement (Bass America Inc)
Insurance Indemnity. (a) For The Surviving Corporation shall, and, if applicable, Parent shall cause the Surviving Corporation to, maintain in effect for not less than six years from after the Effective Time the current directors' and officers' insurance policies (or policies containing substantially similar coverage) of the Company with respect to acts or failures to act prior to or as of 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 payment of claims thereunder); provided, however, that in order to maintain or procure such coverage, neither Parent nor the Surviving Corporation, as applicable, shall be required to pay, in the aggregate, an annual premium in excess of 200% of the current annual premium paid by Parent or the Company for its existing coverage (the "Cap Amount"); and provided, further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the Cap Amount, the Parent 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 Cap Amount. From and after the Effective Time, the Surviving Corporation shall, and, if applicable, Parent shall maintain in effect the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; provided, however, that in no event shall -------- ------- cause the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverageto, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, and provide advancement of expenses to, to the fullest extent permitted under applicable law, each person who is, is a current or has been at any time prior to the date hereof former officer or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any SubsidiarySubsidiaries (each, an "Indemnified Party") against all losses, claims, damages, liabilities, costs or expenses (including reasonable attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedings, ------ arbitrations, investigations proceeding or audits (collectively, "Litigation") investigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting In the foregoingevent of any such claim, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
action, suit, proceeding or investigation (d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs), the Surviving Corporation indemnifying party shall control the defense of such Action with counsel selected by the Surviving Corporationit; provided, providedhowever, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with through counsel selected by it at the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(fb) Purchaser Parent agrees that, in the event the Alternative Merger is consummated, the provisions of the Company Restated Certificate of Incorporation and By-laws in effect as of the date of this Agreement affecting the Indemnified Parties' rights to indemnification, limitation of liability and advancement of expenses shall have no obligations under Section 8.6(c)survive the consummation of the Alternative Merger and shall continue in full force and effect, unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under without any amendment
(c) The provisions of this Section 8.6. -----------6.9 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Samples: Merger Agreement (Zilkha Michael)
Insurance Indemnity. (a) For a period of six years from after the Effective Time, Purchaser shall cause to be maintained officers' and directors' liability insurance covering the Surviving Corporation shall maintain parties who are currently covered, in effect their capacities as officers and directors, by the Company's and its Subsidiaries' current directorsexisting officers' and officersdirectors' liability insurance policies (the "Current Policies") covering those persons -------- who are currently covered by the Policies with respect on terms substantially no less advantageous to actions or omissions occurring prior to the Effective Timesuch parties than such Current Policies; provided, however, that Purchaser shall not be required, in no event shall -------- ------- order to maintain or procure such coverage, to pay annual premiums in excess of 200% of the Surviving Corporation aggregate annual premiums paid by the Company for the Current Policies during 1996 (the "Cap"); and provided, further, that if equivalent coverage cannot be required to expend in any one year obtained, or can be obtained only by paying an amount in excess of 150% of the Cap, Purchaser shall only be required to obtain such coverage for such six-year period as can be obtained by paying annual premiums currently paid by equal to the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amountCap.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from From and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, officer or director or similar person of the Company or any Subsidiary, of its Subsidiaries against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") Litigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Company and after the Effective Time the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(dc) The provisions of this Section 8.6 are intended for If the benefit of and ----------- Merger shall be enforceable by each person who is now or has have been at any time prior consummated, the Surviving Corporation shall, to the date of this Agreementfullest extent permitted under applicable law, indemnify and hold harmless Purchaser and any person or entity who becomes prior to the Effective Time, was an officer, director or similar person affiliate of Purchaser prior to the Effective Time against any Losses in connection with any Litigation arising out of or pertaining to any of the Company or any of its Subsidiariestransactions contemplated by this Agreement.
(ed) If any Litigation described in paragraph (b) or (c) of this Section 8.6(c) 8.8 (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that which counsel shall be reasonably acceptable to the -------- party seeking indemnification pursuant to Section 8.6(cparagraph (b) or (each, an "Indemnified -------------- ----------- Party"c) shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------Section
Appears in 1 contract
Insurance Indemnity. (a) For Parent shall cause the Surviving Corporation to maintain in effect for not less than six years from after the Effective Time, the Surviving Corporation shall maintain in effect the Company's ’s and its Subsidiaries' subsidiaries’ current directors' ’ and officers' liability ’ insurance policies (or policies of at least the "Policies"same coverage containing terms and conditions no less advantageous to the current and all former directors and officers of the Company and its subsidiaries) covering those persons -------- who are currently covered by the Policies with respect to actions acts or omissions occurring failures to act prior to the Effective Time, including acts relating to the transactions contemplated by this Agreement; provided, however, that in no event shall -------- ------- Parent and the Surviving Corporation shall not be required to expend in any one year maintain or obtain policies providing such coverage except to the extent such coverage can be provided at an amount in excess aggregate premium of 150% of no greater than $4,000,000 (the annual premiums currently paid by the Company “Cap”); and its Subsidiaries for such insurance coverageprovided, and, provided further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an aggregate premium in excess of the -------- ------- annual premiums Cap, Parent or the Surviving Corporation shall only be required to obtain as much coverage as can be obtained by paying an aggregate premium equal to the Cap.
(b) For six years after the Effective Time, Parent and the Surviving Corporation shall indemnify and hold harmless to the same extent such Persons are indemnified on the date of this Agreement under the certificate of incorporation and bylaws of the Company and the equivalent organization documents of its subsidiaries to the fullest extent permitted under applicable Law and whether asserted or claimed prior to, at or after the Effective Time, each Person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer or director of the Company or any of its subsidiaries (each, an “Indemnified Party” and collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, liabilities or, subject to the last sentence of this paragraph, amounts paid in settlement, arising in connection with any claim, action, suit, proceeding or investigation (an “Action”) arising out of, relating to or in connection with (i) any acts or omissions occurring or alleged to occur prior to the Effective Time (including, without limitation, acts or omissions in connection with such insurance coverage exceed Persons serving as an officer or director or other fiduciary in any Person if such amountservice was at the request or for the benefit of the Company) or (ii) the adoption and approval of this Agreement, the Merger or the other transactions contemplated by this Agreement or arising out of, relating to or in connection with the transactions contemplated by this Agreement. In the event of any such Action, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, which counsel shall be reasonably acceptable to the Indemnified Party; provided, however, that the Indemnified Party shall be permitted to participate in the defense of such Action through counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to the Surviving Corporation, at the Indemnified Party’s expense. Notwithstanding the foregoing, if there is any conflict between the Surviving Corporation and any Indemnified Parties or there are additional defenses available to any Indemnified Parties, the Indemnified Parties shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Parties, which counsel shall be reasonably acceptable to the Surviving Corporation, and Parent shall cause the Surviving Corporation to pay the reasonable fees and expenses of such counsel, as accrued and in advance of the final disposition of such Action to the fullest extent permitted by applicable Law; provided, however, that the Surviving Corporation shall not be obligated to obtain policies pay the reasonable fees and expenses of more than one counsel for all Indemnified Parties in any single Action except to the extent that, in the opinion of counsel for the Indemnified Parties, two or more of such Indemnified Parties have conflicting interests in the outcome of such Action. Parent and Purchaser acknowledge that the members of the Board of Directors shall be entitled to select their own counsel pursuant to the preceding sentence with respect to any litigation related to the greatest coverage available transactions contemplated hereby; provided, however, that such counsel must be reasonably acceptable to Parent. Any Indemnified Party wishing to claim indemnification under this Section 6.9(b), upon learning of any such claim, action, suit, proceeding or investigation eligible for a cost indemnification under this Section 6.9(b), shall notify the Surviving Corporation, but failure to notify the Surviving Corporation shall not exceeding relieve it from any liability which it may have under this Section 6.9(b), except to the extent that such amount.
(b) failure results in the forfeiture of substantive rights or defenses. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(c) Following the Merger, Parent will cause the Surviving Corporation to, keep in effect in its bylaws provisions for a period of not less than six years from after the Effective Time (or, all provisions in the case Surviving Corporation’s certificate of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) incorporation and bylaws that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries at least to the fullest extent permitted they are presently indemnified by the DGCL, which Company and such provisions shall not be amended except as either required by applicable law Law or except to make changes permitted by law Law that would enhance not adversely effect the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 6.9 are intended for the benefit of and ----------- shall be enforceable by each person who is now or has been at any time prior in addition to the date rights that an Indemnified Party may have under the certificate of this Agreementincorporation, bylaws or who becomes prior to the Effective Time, an officer, director agreements of or similar person of with the Company or any of its Subsidiariessubsidiaries or under applicable Law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.9.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occursParent, the Surviving Corporation or any of their successors or assigns (i) shall control consolidate with or merge into any other Person and shall not be the defense continuing or surviving Person of such Action with counsel selected by consolidation or merger or (ii) shall transfer or convey all or substantially all of its properties and assets to any Person, then and in each such case, Parent shall cause proper provisions to be made so that the successors and assigns of Parent or the Surviving Corporation, providedas the case may be, that shall assume all of the -------- party seeking indemnification pursuant to obligations set forth in this Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld6.9.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under The provisions of this Section 8.6. -----------6.9 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Samples: Merger Agreement (Bioreliance Corp)
Insurance Indemnity. (a) For six a period of four years from after the Effective Time, Purchaser shall cause to be maintained officers' and directors' liability insurance covering the Surviving Corporation shall maintain parties who are currently covered, in effect their capacities as officers and directors, by the Company's and its Subsidiaries' current directorsexisting officers' and officersdirectors' liability insurance policies (the "Current Policies") covering those persons -------- who are currently covered by the Policies with respect on terms substantially no less ---------------- advantageous to actions or omissions occurring prior to the Effective Timesuch parties than such Current Policies; provided, however, that in no event shall -------- ------- Purchaser shall not be required, in order to maintain or procure such coverage, to pay annual premiums in excess of $225,000 (the Surviving Corporation "Cap"); and provided, further, --- -------- ------- that if equivalent coverage cannot be required to expend in any one year obtained, or can be obtained only by paying an amount in excess of 150% of the Cap, Purchaser shall only be required to obtain such coverage for such four-year period as can be obtained by paying annual premiums currently paid by equal to the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amountCap.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for For a period of not less than six four years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, officer or director or similar person of the Company or any Subsidiary, of its Subsidiaries against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection ------ with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") Litigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Company and after the Effective Time the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Insurance Indemnity. (a) For Parent will cause the Surviving Corporation to maintain in effect for not less than six (6) years from after the Effective Time, the Surviving Corporation shall maintain in effect the Company's and its Subsidiaries' current directors' directors and officers' liability insurance policies (or policies of at least the "Policies"same coverage containing terms and conditions no less advantageous to the current and all former directors and officers of the Company) covering those persons -------- who are currently covered by the Policies with respect to actions acts or omissions occurring failures to act prior to the Effective Time, including acts relating to the transactions contemplated by this Agreement; provided, however, that in no event shall -------- ------- Parent and the Surviving Corporation shall not be required to expend in any one year maintain or obtain policies providing such coverage except to the extent such coverage can be provided at an amount in excess annual cost of 150no greater than 200% of the most recent annual premiums currently premium paid by the Company prior to the date hereof (the "Cap"); and its Subsidiaries for such insurance coverageprovided, and, provided further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the -------- ------- annual premiums of such insurance coverage exceed such amountCap, Parent or the Surviving Corporation shall only be obligated required to obtain policies with as much coverage as can be obtained by paying an annual premium equal to the greatest coverage available for a cost not exceeding such amountCap.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from From and after the Effective Time, Parent and the -------------- Surviving Corporation shall jointly and severally indemnify and hold harmless, harmless to the fullest extent permitted under applicable lawLaw, each person Person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, officer or director or similar person of the Company or any Subsidiaryof its Subsidiaries (each, an "Indemnified Party") against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedings, ------ arbitrations, investigations proceeding or audits (collectively, "Litigation") investigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by each person who is now whether asserted or has been claimed prior to, at any time prior to the date of this Agreement, or who becomes prior to after the Effective Time. In the event of any such claim, an officeraction, director suit, proceeding or similar person of the Company or any of its Subsidiaries.
investigation (e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs), the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, which counsel shall be reasonably acceptable to the Indemnified Party; provided, however, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") Party shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party Parties or there are additional defenses available to any Indemnified PartyParties, such the Indemnified Party Parties shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at Parties and Parent shall cause the Surviving Corporation's expenseCorporation to pay the reasonable fees and expenses of such counsel, as accrued and in advance of the final disposition of such Action to the fullest extent permitted by applicable law; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the reasonable fees and expenses of more than one counsel (in addition to any necessary local counsel) for any all Indemnified Party Parties in any single Action except to the extent that Indemnified Parties have conflicting interests in the outcome of such Action.
(c) Parent shall cause the Surviving Corporation to keep in effect in its Certificate of Incorporation and By-Laws provisions at least as favorable as the provisions in the Company's Certificate of Incorporation and By-Laws that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company to the fullest extent permitted by the DGCL and such provisions shall not be amended except as either required by applicable Law or to make changes permitted by Law that would enhance the rights of past or present officers and directors to exculpation, indemnification or advancement of expenses.
(d) If Parent or the Surviving Corporation or any of their respective successors or assigns: (i) shall consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall 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 Parent or the Surviving Corporation shall assume all of the obligations set forth in this Section 5.8.
(e) The provisions of this Section 5.8 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives, and shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, pursuant to Law, contract or otherwise. The Surviving Corporation shall not pay all expenses, including attorneys' fees, that may be incurred by any Indemnified Party in enforcing the indemnity obligations provided for in this Section 5.8.
(f) Notwithstanding anything to the contrary in this Section 5.8, neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent, which consent shall not be unreasonably be withheldwithheld or delayed.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Insurance Indemnity. (a) For six years All rights to indemnification and exculpation from the Effective Time, the Surviving Corporation shall maintain in effect the Company's liability for acts and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring at or prior to the Effective Time; provided, however, that Time and rights to advancements of expenses relating thereto now existing in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% favor of the annual premiums currently paid by current or former directors, officers, employees and agents of the Company and its Subsidiaries (the "Indemnitees") as provided in their respective charters and/or bylaws (or similar organizational documents) or any indemnification agreement listed in Section 7.6(a) of the Company Disclosure Letter shall survive the Merger and shall not, for a period of six years after the Effective Time, be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any such insurance coverageIndemnitees, and, provided further, that if the -------- ------- annual premiums unless an alteration or modification of such insurance coverage exceed such amount, documents is required by applicable Law or the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amountIndemnitee affected thereby otherwise consents in writing thereto.
(b) The Surviving Corporation shall keep either: (i) cause to be obtained and have in effect in its bylaws provisions for at the Effective Time "tail" insurance policies with a claims period of not less than six years from the Effective Time (or, in the case of matters with respect to officers' and directors' or fiduciary duty liability insurance for acts or omissions occurring prior to the Effective Time that have ("D&O Insurance") covering the persons described in Section 7.6(a) (whether or not been resolved prior they are entitled to the sixth anniversary of the Effective Time, until such matters indemnification thereunder) who are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted currently covered by the DGCL, which provisions shall not be amended except Company's Current D&O Insurance on terms (particularly as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers coverage and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed amount) no less advantageous in the Disclosure Letter aggregate to such indemnified parties than such Current D&O Insurance; or (ii) provide and copies maintain, for a period of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), six years from and after the Effective Time, D&O Insurance covering the -------------- persons described in Section 7.6(b)(i) on terms (particularly as to coverage and amount) no less advantageous in the aggregate to such indemnified parties than such Current D&O Insurance; provided, that the Surviving Corporation shall indemnify and hold harmless, will not be required to pay an annual premium for any D&O Insurance obtained pursuant to this Section 7.6(b)(ii) in excess of 150% of the fullest extent permitted under applicable law, each person who is, or has been at any time prior to annual premium being paid as of the date hereof or who becomes prior hereof, which the Company represents and warrants to be $1,042,420 (the Effective Time, an officer, director or similar person "Current Premium"); and if the provision and maintenance of D&O Insurance in accordance with this Section 7.6(b)(ii) exceeds 150% of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoingCurrent Premium, the Surviving Corporation shall periodically advance expenses as incurred provide the greatest amount of substantially equivalent D&O Insurance obtainable for 150% of the Current Premium.
(c) In the event the Surviving Corporation or any of its respective successors or assigns (i) consolidates with respect 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 the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined any Person, proper provisions shall be made so that such person is not entitled to indemnificationPerson assumes the obligations set forth in this Section 7.6.
(d) The This Section 7.6, which shall survive the consummation of the Merger at the Effective Time and shall continue for the periods specified herein, is intended to benefit the Company, the Surviving Corporation, and any Person referenced in this Section 7.6 or indemnified hereunder, each of whom may enforce the provisions of this Section 8.6 are intended for the benefit 7.6 (whether or not parties to this Agreement). The rights of and ----------- this Section 7.6 shall be enforceable by each person who is now in addition to any rights such Persons may have under the Company's certificate of incorporation or has been at bylaws as currently in effect or the articles or certificate of incorporation or bylaws or other organizational documents of any time prior to the date of this AgreementSubsidiary, or who becomes prior to under Delaware Law or any other applicable Laws or under an agreement of any Indemnitee with the Effective Time, Company or an officer, director or similar person Subsidiary that is listed in Section 5.5(a) of the Company or any of its SubsidiariesDisclosure Letter.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Insurance Indemnity. (a) For a period of six (6) years from following the Effective TimeClosing Date, Purchaser shall not, and shall not permit any Acquired Company to, amend, repeal or otherwise modify any provision in any Company Organizational Document relating to the Surviving Corporation exculpation or indemnification of any manager, officer or director of any Acquired Company (the “Indemnified Persons”), it being the intent of the parties hereto that the Indemnified Persons shall maintain continue to be entitled to such exculpation and indemnification to the full extent of applicable Law.
(b) For a period of six (6) years following the Closing, Purchaser shall maintain, or shall cause each Acquired Company for itself to maintain, in effect the Company's and its Subsidiaries' current directors' ’ and officers' ’ liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies Acquired Companies’ managers’, directors’ and officers’ liability insurance policies (copies of which have heretofore been made available to Purchaser by the Company) with respect to actions or omissions occurring prior to coverage in amount and scope at least as favorable as the Effective TimeAcquired Companies’ existing coverage; provided, however, that in no event this Section 7.3(b) shall -------- ------- the Surviving Corporation be required deemed to expend in any one year an amount in excess of 150% have been satisfied if Parent or Parent Sub, on behalf of the annual Acquired Companies shall have purchased and paid in full all premiums currently paid with respect to managers’, directors’ and officers’ liability tail insurance covering the Indemnified Persons who are presently covered by the Company Acquired Companies’ managers’, directors’ and its Subsidiaries for such officers’ liability insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of respect to matters or circumstances occurring at or prior to the Effective Time Closing Date, on coverage terms that have not been resolved prior are equivalent to the sixth anniversary coverage terms of such current insurance policies in effect for the Effective TimeAcquired Companies on the date of this Agreement (such policy, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser“Tail Policy”).
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for 7.3 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person to whom this Section 7.3 applies without the benefit consent of and ----------- such Indemnified Person (it being expressly agreed that the Indemnified Persons to whom this Section 7.3 applies shall be enforceable by each person who is now or has been at any time prior to the date third-party beneficiaries of this AgreementSection 7.3 and shall be entitled to enforce the covenants contained herein), or who becomes prior and shall be in addition to any other rights an Indemnified Person may have under the Effective TimeCompany Organizational Documents, an officer, director or similar person under the Law of the State of Delaware or otherwise. In the event any Acquired Company or any of its Subsidiaries.
successors or assigns (ei) If consolidates with or merges into any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation other Person and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated 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 pay -------- ------- any Person, then, and in each such case to the fees extent necessary, proper provision shall be made so that the successors and expenses assigns of more than one counsel for any Indemnified Party such Acquired Company assume the obligations set forth in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------7.3.
Appears in 1 contract
Samples: Merger Agreement (Thoratec Corp)
Insurance Indemnity. (a) For six years from the Effective Time, the Surviving Corporation shall maintain in effect the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; provided, however, that in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from From and after the Effective Time, the -------------- -------------------- Surviving Corporation shall indemnify will indemnify, defend and hold harmless, to the fullest extent permitted that the Company would be required under its certificate of incorporation, by-laws, indemnification agreements with its officers and directors (the "Indemnification Agreements") and applicable law, each person who is, is now or has been at any time was during the past six months prior to the date hereof an officer or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary(individually, an "Indemnified Party" and collectively, the "Indemnified Parties"), against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedings, ------ arbitrations, investigations proceeding or audits (collectively, "Litigation") investigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts such occurring at or omissions occurred prior to the Effective Time. Without limiting In the event of any such claim, action, suit, proceeding or investigation (an "Action"), any Indemnified Party wishing to claim indemnification will promptly notify the Surviving Corporation thereof (provided that failure to so notify the Surviving Corporation will not affect the obligations of the Surviving Corporation to provide indemnification except to the extent that the Surviving Corporation shall have been prejudiced as a result of such failure). With respect to any Action for which indemnification is requested, the Surviving Corporation will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Surviving Corporation may assume the defense thereof, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Surviving Corporation to the Indemnified Party of its election to assume the defense of an Action, the Surviving Corporation will not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, other than as provided below. The Surviving Corporation will not settle any Actions without the consent of the Indemnified Party where such settlement includes an admission of civil or criminal liability on behalf of an officer or director or requires any payment to be made by the Indemnified Party. The Indemnified Party will have the right to employ counsel in any Action, but the fees and expenses of such counsel incurred after notice from the Surviving Corporation of its assumption of the defense thereof will be at the expense of the Indemnified Party, unless (i) the employment of counsel by the Indemnified Party has been authorized by the Surviving Corporation in writing, (ii) the Indemnified Party will have reasonably concluded upon the advice of counsel that there may be a conflict of interest between the Indemnified Party and the Surviving Corporation in the conduct of the defense of an Action, or (iii) the Surviving Corporation shall not in fact have employed counsel to assume the defense of an Action, in each of which cases the reasonable fees and expenses of counsel selected by the Indemnified Party will be at the expense of the Surviving Corporation. Notwithstanding the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall will not be liable for any settlement effected without its written consentconsent and the Surviving Corporation will not be obligated pursuant to this Section 6.10(a) to pay the fees and disbursements of more than one counsel (including local counsel) for all Indemnified Parties in any single Action, which consent except to the extent two or more of such Indemnified Parties have conflicting interests in the outcome of such action. In the event of any conflict between the provisions of the Indemnification Agreements and this Section 6.10, the provisions of the Indemnification Agreements shall not unreasonably be withheldprevail.
(fb) Purchaser shall have no obligations under Section 8.6(c)For a period of four years after the Effective Time, unless and -------------- until the Surviving Corporation is unable will maintain officers' and directors' liability insurance covering the Indemnified Parties who are currently covered, in their capacities as officers and directors, by the Company's existing officers' and directors' liability insurance policies on terms substantially no less advantageous to satisfy the Indemnified Parties than such existing insurance; provided, however, that the -------- ------- Surviving Corporation will not be required in order to maintain or procure such coverage to pay premiums on an annualized basis in excess of 200% of the current annual premium paid by the Company for its indemnification obligations under existing coverage (the "Cap") (which current annual premium the Company represents and warrants to be approximately $135,000); and provided, further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the Cap, the Surviving Corporation will only be required to obtain as much coverage as can be obtained by paying premiums on an annualized basis equal to the Cap.
(c) The provisions of this Section 8.6. -----------6.10 will survive the consummation of the Merger and expressly are intended to benefit each of the Indemnified Parties.
Appears in 1 contract
Insurance Indemnity. (a) For Parent will cause the Surviving Corporation to maintain in effect for not less than six (6) years from after the Effective Time, the Surviving Corporation shall maintain in effect the Company's and its Subsidiaries' current directors' directors and officers' liability insurance policies (or policies of at least the "Policies"same coverage containing terms and conditions no less advantageous to the current and all former directors and officers of the Company) covering those persons -------- who are currently covered by the Policies with respect to actions acts or omissions occurring failures to act prior to the Effective Time, including acts relating to the transactions contemplated by this Agreement; provided, however, that in no event shall -------- ------- Parent and the Surviving Corporation shall not be required to expend in any one year maintain or obtain policies providing such coverage except to the extent such coverage can be provided at an amount in excess annual cost of no greater than 150% of the most recent annual premiums currently premium paid by the Company prior to the date hereof (the "Cap"); and its Subsidiaries for such insurance coverageprovided, and, provided further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the -------- ------- annual premiums of such insurance coverage exceed such amountCap, Parent or the Surviving Corporation shall only be obligated required to obtain policies with as much coverage as can be obtained by paying an annual premium equal to the greatest coverage available for a cost not exceeding such amountCap.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from From and after the Effective Time, Parent and the -------------- Surviving Corporation shall jointly and severally indemnify and hold harmless, harmless to the fullest extent permitted under applicable lawLaw, each person Person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, officer or director or similar person of the Company or any Subsidiaryof its Subsidiaries (each, an "Indemnified Party"), so long as such Person is, or has been, acting within the scope of such Person's employment or fiduciary duties, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedings, ------ arbitrations, investigations proceeding or audits (collectively, "Litigation") investigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by each person who is now whether asserted or has been claimed prior to, at any time prior to the date of this Agreement, or who becomes prior to after the Effective Time. In the event of any such claim, an officeraction, director suit, proceeding or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occursinvestigation, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, which counsel shall be reasonably acceptable to the Indemnified Party; provided, however, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") Party shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party Parties or there are additional defenses available to any Indemnified PartyParties, such the Indemnified Party Parties shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at Parties and Parent shall cause the Surviving Corporation's expenseCorporation to pay the reasonable fees and expenses of such counsel, as accrued and in advance of the final disposition of such Action to the fullest extent permitted by applicable Law; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the reasonable fees and expenses of more than one counsel (in addition to any necessary local counsel) for any all Indemnified Party Parties in any single Action except to the extent that Indemnified Parties have conflicting interests in the outcome of such Action.
(c) Parent shall cause the Surviving Corporation to keep in effect in its Amended Articles of Incorporation and Amended and Restated By-Laws provisions at least as favorable as the provisions in the Company's Certificate of Incorporation and By-Laws that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company to the fullest extent permitted by the MBCL, so long as such Person is, or has been, acting within the scope of such Person's employment or fiduciary duties, and such provisions shall not be amended except as either required by applicable Law or to make changes permitted by Law that would enhance the rights of past or present officers and directors to exculpation, indemnification or advancement of expenses.
(d) If Parent or the Surviving Corporation or any of their respective successors or assigns: (i) shall consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall 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 Parent or the Surviving Corporation shall assume all of the obligations set forth in this Section 5.8.
(e) The provisions of this Section 5.8 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives, and shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, pursuant to Law, contract or otherwise. The Surviving Corporation shall not pay all expenses, including attorneys' fees, that may be incurred by any Indemnified Party in enforcing the indemnity obligations provided for in this Section 5.8.
(f) Notwithstanding anything to the contrary in this Section 5.8, neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent, which consent shall not be unreasonably be withheldwithheld or delayed.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Samples: Agreement and Plan of Merger (DRS Technologies Inc)
Insurance Indemnity. (a) For six Purchaser will cause the Surviving Corporation to maintain in effect for not less than three years from after the Effective Time, the Surviving Corporation shall maintain in effect Company's current directors and officers insurance policies, if such insurance is obtainable (or policies of at least the same coverage containing terms and conditions no less advantageous to the current and all former directors and officers of the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions acts or omissions occurring failures to act prior to the Effective Time, including acts relating to the transactions contemplated by this Agreement; provided, however, that in no event shall -------- ------- order to maintain or procure such coverage, Purchaser and the Surviving Corporation shall not be required to expend in any one year maintain or obtain policies providing such coverage except to the extent such coverage can be provided at an amount in excess annual cost of 150% of no greater than 1.5 times the most recent annual premiums currently premium paid by the Company prior to the date hereof (the "CAP"); and its Subsidiaries for such insurance coverageprovided, and, provided further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the -------- ------- Cap, Purchaser or the Surviving Corporation shall only be required to obtain as much coverage as can be obtained by paying an annual premiums premium equal to the Cap.
(b) From and after the Effective Time, Purchaser and the Surviving Corporation shall indemnify and hold harmless each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer or director of the Company or any of its Subsidiaries (each, an "INDEMNIFIED PARTY"), in connection with any claim, action, suit, proceeding or investigation (an "ACTION") arising out of or pertaining to acts or omissions by them in their capacities as such, which acts or omissions occurred prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, at least to the extent that such insurance coverage exceed Indemnified Party is presently indemnified by the Company. In the event of any such amountAction, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, which counsel shall be reasonably acceptable to the Indemnified Party; provided, however, that the Indemnified Party shall be permitted to participate in the defense of such Action through counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to the Surviving Corporation, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any conflict between the Surviving Corporation and any Indemnified Parties or there are additional defenses available to any Indemnified Parties, the Indemnified Parties shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Parties, which counsel shall be reasonably acceptable to the Surviving Corporation, and Purchaser shall cause the Surviving Corporation to pay the reasonable fees and expenses of such counsel, as accrued and in advance of the final disposition of such Action to the fullest extent permitted by applicable law; provided, however, that the Surviving Corporation shall not be obligated to obtain policies with pay the greatest coverage available reasonable fees and expenses of more than one counsel for a cost not exceeding all Indemnified Parties in any single Action except to the extent that, in the opinion of counsel for the Indemnified Parties, two or more of such amount.
(b) Indemnified Parties have conflicting interests in the outcome of such Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(c) Purchaser shall cause the Surviving Corporation promptly to adopt and keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case Surviving Corporation's certificate of matters occurring prior incorporation and by-laws to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries at least to the fullest extent permitted they are presently indemnified by the DGCL, which Company and such provisions shall not be amended except as either required by applicable law Law or except to make changes permitted by law Law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, . Purchaser shall cause the Surviving Corporation to comply with the terms and shall observe the conditions of all existing indemnification agreements existing in favor of past and present with the Company's officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaserdirectors.
(cd) Subject to Section 8.6(f)If Parent, from and after Purchaser or the Effective Time, the -------------- Surviving Corporation or any of their respective successors or assigns (i) shall indemnify consolidate with or merge into any other corporation or other entity and hold harmless, to shall not be the fullest extent permitted under applicable law, each person who is, continuing or has been at any time prior to the date hereof surviving corporation or who becomes prior to the Effective Time, an officer, director or similar person entity of the Company consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any Subsidiaryindividual, against all lossescorporation or other entity, claimsthen and in each such case, damagesproper provisions shall be made so that the successors and assigns of Parent, liabilities, costs Purchaser or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to assume all of the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnificationobligations set forth in this Section 6.8.
(de) The provisions of this Section 8.6 6.8 are intended to be for the benefit of of, and ----------- shall be enforceable by by, 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, director or similar person of the Company or any of its SubsidiariesIndemnified Parties, their heirs and their representatives.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Insurance Indemnity. (a) For six five years from the Effective Time, the Surviving Corporation shall maintain in effect the Company's and its Subsidiaries' current directors' and officers' liability insurance policies or replacement policies providing at least equal coverage (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; provided, however, that in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from From and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) If, after the Effective Time, Purchaser or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties or assets to any person, then, in each such case, proper provisions shall be made so that successors and assigns of Purchaser or the Surviving Corporation, as the case may be, shall assume such entity's obligations set forth in this Section 8.6. The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, provided that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") ), shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Samples: Merger Agreement (Uproar Inc)
Insurance Indemnity. (a) For Purchaser will (and the Surviving Corporation as successor to the Purchaser as a result of the Merger will) maintain in effect for not less than six years from after the Effective Time, the Surviving Corporation shall maintain in effect Company's current directors and officers insurance policies, if such insurance is obtainable (or policies of at least the same coverage containing terms and conditions no less advantageous to the current and all former directors and officers of the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions acts or omissions occurring failures to act prior to the Effective Time, including acts relating to the transactions contemplated by this Agreement; provided, however, that in no event shall -------- ------- the Surviving Corporation be required order to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for maintain or procure such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall not be obligated required to maintain or obtain policies providing such coverage except to the extent such coverage can be provided at an annual cost of no greater than 2 times the most recent annual premium paid by the Company prior to the date hereof (the "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 Cap, Purchaser or the Surviving Corporation shall only be required to obtain policies with as much coverage as can be obtained by paying an annual premium equal to the greatest coverage available for a cost not exceeding such amountCap.
(b) To the extent, if any, not provided by an existing right of indemnification or the agreement or policy, from and after the Effective Time, Purchaser and following the Merger, the Surviving Corporation shall indemnify and hold harmless each Person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer or director of the Company or any of its Subsidiaries (each, an "INDEMNIFIED PARTY"), against all losses, expenses, claims, damages or liabilities or, subject to the last sentence of this paragraph, amounts paid in settlement, arising in connection with any claim, action, suit, proceeding or investigation (an "ACTION") arising out of or pertaining to acts or omissions by such Person in their capacities as an officer or director, as the case may be, of the Company, which acts or omissions occurred prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time to the fullest extent permitted by law. In the event of any such Action, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, which counsel shall be reasonably acceptable to the Indemnified Party; provided, however, that the Indemnified Party shall be permitted to participate in the defense of such Action through counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to the Surviving Corporation, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any conflict between the - 33 - Surviving Corporation and any Indemnified Parties or there are additional defenses available to any Indemnified Parties, the Indemnified Parties shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Parties, which counsel shall be reasonably acceptable to the Surviving Corporation, and Purchaser shall cause the Surviving Corporation to pay the reasonable fees and expenses of such counsel, as accrued and in advance of the final disposition of such Action to the fullest extent permitted by applicable law; provided, however, that the Surviving Corporation shall not be obligated to pay the reasonable fees and expenses of more than one counsel for all Indemnified Parties in any single Action except to the extent that, in the opinion of counsel for the Indemnified Parties, two or more of such Indemnified Parties have conflicting interests in the outcome of such Action. Parent and Purchaser acknowledge that the members of the Special Committee shall be entitled to select their own counsel pursuant to the preceding sentence with respect to any litigation related to the transactions contemplated hereby; provided, however, that such counsel must be reasonably acceptable to Parent. Any Indemnified Party wishing to claim indemnification under this SECTION 6.9, upon learning of any such claim, action, suit, proceeding or investigation eligible for indemnification under this SECTION 6.9, shall notify the Surviving Corporation, but failure to notify the Surviving Corporation shall not relieve it from any liability which it may have under this SECTION 6.9, except to the extent that such failure results in the forfeiture of substantive rights or defenses. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(c) Purchaser will, and following the Merger, will cause the Surviving Corporation to, keep in effect in its bylaws all provisions for a period of not less than six years from the Effective Time (or, in the case Surviving Corporation's certificate of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) incorporation and by-laws that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries at least to the fullest extent permitted they are presently indemnified by the DGCL, which Company and such provisions shall not be amended except as either required by applicable law Law or except to make changes permitted by law Law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for If the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company Surviving Corporation or any of its Subsidiariessuccessors or assigns (i) shall consolidate with or merge into any other corporation or other entity and shall not be the continuing or surviving corporation or entity of the consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then and in each such case, proper provisions shall be made so that the successors and assigns of the Surviving Corporation shall assume all of the obligations set forth in this SECTION 6.9.
(e) If any Litigation described in Section 8.6(c) (eachThe provisions of this SECTION 6.9 are intended to be for the benefit of, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") and shall be permitted to participate in the defense enforceable by, each of such Action through ----- counsel selected by the Indemnified PartyParties, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation their heirs and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheldtheir representatives.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Insurance Indemnity. (a) For Purchaser will (and the Surviving Corporation as successor to the Purchaser as a result of the Merger will) maintain in effect for not less than six years from after the Effective Time, the Surviving Corporation shall maintain in effect Company's current directors and officers insurance policies, if such insurance is obtainable (or policies of at least the same coverage containing terms and conditions no less advantageous to the current and all former directors and officers of the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions acts or omissions occurring failures to act prior to the Effective Time, including acts relating to the transactions contemplated by this Agreement; provided, however, that in no event shall -------- ------- the Surviving Corporation be required order to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for maintain or procure such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall not be obligated required to maintain or obtain policies providing such coverage except to the extent such coverage can be provided at an annual cost of no greater than 2 times the most recent annual premium paid by the Company prior to the date hereof (the "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 Cap, Purchaser or the Surviving Corporation shall only be required to obtain policies with as much coverage as can be obtained by paying an annual premium equal to the greatest coverage available for a cost not exceeding such amountCap.
(b) To the extent, if any, not provided by an existing right of indemnification or the agreement or policy, from and after the Effective Time, Purchaser and following the Merger, the Surviving Corporation shall indemnify and hold harmless each Person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer or director of the Company or any of its Subsidiaries (each, an "Indemnified Party"), against all losses, expenses, claims, damages or liabilities or, subject to the last sentence of this paragraph, amounts paid in settlement, arising in connection with any claim, action, suit, proceeding or investigation (an "Action") arising out of or pertaining to acts or omissions by such Person in their capacities as an officer or director, as the case may be, of the Company, which acts or omissions occurred prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time to the fullest extent permitted by law. In the event of any such Action, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, which counsel shall be reasonably acceptable to the Indemnified Party; provided, however, that the Indemnified Party shall be permitted to participate in the defense of such Action through counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to the Surviving Corporation, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any conflict between the Surviving Corporation and any Indemnified Parties or there are additional defenses available to any Indemnified Parties, the Indemnified Parties shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Parties, which counsel shall be reasonably acceptable to the Surviving Corporation, and Purchaser shall cause the Surviving Corporation to pay the reasonable fees and expenses of such counsel, as accrued and in advance of the final disposition of such Action to the fullest extent permitted by applicable law; provided, however, that the Surviving Corporation shall not be obligated to pay the reasonable fees and expenses of more than one counsel for all Indemnified Parties in any single Action except to the extent that, in the opinion of counsel for the Indemnified Parties, two or more of such Indemnified Parties have conflicting interests in the outcome of such Action. Parent and Purchaser acknowledge that the members of the Special Committee shall be entitled to select their own counsel pursuant to the preceding sentence with respect to any litigation related to the transactions contemplated hereby; provided, however, that such counsel must be reasonably acceptable to Parent. Any Indemnified Party wishing to claim indemnification under this Section 6.9, upon learning of any such claim, action, suit, proceeding or investigation eligible for indemnification under this Section 6.9, shall notify the Surviving Corporation, but failure to notify the Surviving Corporation shall not relieve it from any liability which it may have under this Section 6.9, except to the extent that such failure results in the forfeiture of substantive rights or defenses. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(c) Purchaser will, and following the Merger, will cause the Surviving Corporation to, keep in effect in its bylaws all provisions for a period of not less than six years from the Effective Time (or, in the case Surviving Corporation's certificate of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) incorporation and by-laws that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries at least to the fullest extent permitted they are presently indemnified by the DGCL, which Company and such provisions shall not be amended except as either required by applicable law Law or except to make changes permitted by law Law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(cd) Subject to Section 8.6(f), from and after If the Effective Time, the -------------- Surviving Corporation or any of its successors or assigns (i) shall indemnify consolidate with or merge into any other corporation or other entity and hold harmless, to shall not be the fullest extent permitted under applicable law, each person who is, continuing or has been at any time prior to the date hereof surviving corporation or who becomes prior to the Effective Time, an officer, director or similar person entity of the Company consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any Subsidiaryindividual, against all lossescorporation or other entity, claimsthen and in each such case, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties proper provisions shall be made so that the successors and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out assigns of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to assume all of the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnificationobligations set forth in this Section 6.9.
(de) The provisions of this Section 8.6 6.9 are intended to be for the benefit of of, and ----------- shall be enforceable by by, 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, director or similar person of the Company or any of its SubsidiariesIndemnified Parties, their heirs and their representatives.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Insurance Indemnity. (a) For six years from During the Effective Time, the Surviving Corporation Term hereof Tenant shall maintain in effect the Company's and its Subsidiaries' current directors' and officers' commercial general liability insurance policies on the Premises of at least $1,000,000 per occurrence, $2,000,000 aggregate. As evidence thereof, on or before the Commencement Date, Tenant shall provide to Landlord with copies of certificates of insurance evidencing such coverage during the Term. Such certificates must name Landlord, any mortgagee of Landlord, any other parties designated by Landlord, as additional insureds. Tenant shall also maintain “all risk” (or “special form”) property insurance on all property owned or used by Tenant in the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; provided, however, that in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amountPremises.
(b) The Surviving Corporation Landlord shall keep maintain commercial general liability insurance throughout the Term, with a minimum combined single limit of liability of at least $2,000,000 for personal injuries or deaths of persons occurring in effect or about the Building or Project. In addition, Landlord shall maintain a policy of property insurance covering the Building (including the leasehold improvements constructed by Landlord), in its bylaws provisions for a period of an amount equal to not less than six years from the Effective Time ninety percent (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto90%) of the past and present officers and directors replacement cost of the Company and its Subsidiaries Building. Such policies shall, to the fullest extent permitted by applicable, meet all the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance requirements of Tenant’s property insurance policy under the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to PurchaserLease.
(c) Subject to Section 8.6(f)Tenant shall and hereby does indemnify, protect, defend and hold Landlord harmless for, from and after against any and all loss, cost, damage, claim, expense or liability arising from: (i) Tenant’s use of the Effective TimePremises or the conduct of Tenant’s business or profession; (ii) any activity, work, or thing done, permitted or suffered by the -------------- Surviving Corporation Tenant in or about the Premises; (iii) any breach or default in the performance of any obligation on Tenant’s part to be performed under the terms of this Lease; or (iv) any negligent acts or omissions of Tenant, or of Tenant’s agents or employees. Tenant shall indemnify and hereby does further indemnify, defend and hold harmlessLandlord harmless for, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, from and against all lossescosts, claimsattorneys’ fees, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") liabilities incurred in connection with any claimssuch claim or any action or proceeding brought thereon. In case any action or proceeding is brought against Landlord by reason of any such claim, actionsTenant upon notice from Landlord, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining shall defend same at Tenant’s expense by counsel reasonably satisfactory to acts or omissions, or alleged acts or omissions, by them Landlord. Notwithstanding anything in their capacities as such, which acts or omissions occurred prior this Section 8 to the Effective Time. Without limiting the foregoingcontrary, the Surviving Corporation in no event shall periodically advance expenses as incurred with respect Tenant be required to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnificationdefend, save harmless or indemnify Landlord from any liability arising from any special or consequential damages.
(d) The provisions Landlord shall and hereby does indemnify, protect, defend and hold Tenant harmless for, from and against any and all loss, cost, damage, claim, expense or liability arising from: (i) any activity, work, or thing done, permitted or suffered by Landlord in or about the Project; (ii) any breach or default in the performance of any obligation on Landlord’s part to be performed under the terms of this Lease; or (iv) any negligent acts or omissions of Landlord, or of Landlord’s agents or employees. Landlord shall and hereby does further indemnify, defend and hold Tenant harmless for, from and against all costs, attorneys’ fees, expenses and liabilities incurred in connection with any such claim or any action or proceeding brought thereon. In case any action or proceeding is brought against Tenant by reason of any such claim, Landlord upon notice from Tenant, shall defend same at Landlord’s expense by counsel reasonably satisfactory to Tenant. Notwithstanding anything in this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by each person who is now or has been at any time prior 8 to the date of this Agreementcontrary, in no event shall Landlord be required to defend, save harmless or who becomes prior to the Effective Time, an officer, director indemnify Tenant from any liability arising from any special or similar person of the Company or any of its Subsidiariesconsequential damages.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Insurance Indemnity. (a) For Parent will maintain in effect with a ------------------------------------ carrier reasonably acceptable to the Company for not less than six years from after the Effective Time, the Surviving Corporation shall maintain in effect Company's current directors and officers insurance policies, if such insurance is obtainable (or policies of at least the same coverage containing terms and conditions no less advantageous to the current and all former directors and officers of the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions acts or omissions occurring failures to act prior to the Effective Time, including acts relating to the transactions contemplated by this Agreement; provided, however, that in no event order to maintain or procure such coverage, Parent shall -------- ------- the Surviving Corporation not be required to expend in any one year maintain or obtain policies providing such coverage except to the extent such coverage can be provided at an amount in excess annual cost of 150% of no greater than two times the most recent annual premiums currently premium paid by the Company prior to the date hereof (the "Cap"); and its Subsidiaries for such insurance coverage--- provided, and, provided further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the -------- ------- annual premiums of such insurance coverage exceed such amountCap, the Surviving Corporation Parent shall only be obligated required to obtain policies with as much coverage as can be obtained by paying an annual premium equal to the greatest coverage available for a cost not exceeding such amountCap.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from From and after the Effective Time, the -------------- Surviving Corporation Parent shall indemnify and hold harmless, harmless to the fullest extent permitted under applicable law, each person Person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, officer or director or similar person of the Company or any Subsidiaryof its Subsidiaries (each, an "Indemnified Party") against all losses, claims, damages, liabilities, ----------------- costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedings, ------ arbitrations, investigations proceeding or audits (collectively, "Litigation") investigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by each person who is now whether asserted or has been claimed prior to, at any time prior to the date of this Agreement, or who becomes prior to after the Effective Time. In the event of any such claim, an officeraction, director suit, proceeding or similar person of the Company or any of its Subsidiaries.
investigation (e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs), the Surviving Corporation Parent shall ------ control the defense of such Action with counsel selected by the Surviving CorporationParent, which counsel shall be reasonably acceptable to the Indemnified Party; provided, however, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") Party shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to the Parent, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation Parent and any Indemnified Party Parties or there are additional defenses available to any Indemnified PartyParties, such the Indemnified Party Parties shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified PartyParties, at which counsel shall be reasonably acceptable to the Surviving Corporation's expenseParent, and Parent shall cause Parent to pay the reasonable fees and expenses of such counsel, as accrued and in advance of the final disposition of such Action to the fullest extent permitted by applicable law; provided, however, that the Surviving Corporation Parent shall not be obligated to pay -------- ------- the reasonable fees and expenses of more than one counsel for any all Indemnified Party Parties in any single Action except to the extent that, in the opinion of counsel for the Indemnified Parties, two or more of such Indemnified Parties have conflicting interests in the outcome of such Action. The Surviving Corporation Parent shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(fc) Purchaser The Surviving Corporation shall have no obligations under Section 8.6(c), unless keep in effect all provisions in its articles of organization and -------------- until by-laws that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company to the fullest extent permitted by the MBCL and such provisions shall not be amended except as either required by applicable law or to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses.
(d) If the Surviving Corporation is unable or any of its respective successors or assigns (i) shall consolidate with or merge into any other corporation or other entity and shall not be the continuing or surviving corporation or entity of the consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to satisfy its indemnification any individual, corporation or other entity, then and in each such case, proper provisions shall be made so that the successors and assigns of the Surviving Corporation shall assume all of the obligations under set forth in this Section 8.6. -----------6.8.
(e) The provisions of this Section 6.8 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Insurance Indemnity. (a) For six years from 21.1 The EPC Contractor shall at all times during the Effective Time, the Surviving Corporation shall maintain in effect the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; provided, however, that in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% performance of the annual premiums currently paid by Services and Work and the Company duration of this Agreement provide and comply with, and require its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated Subcontractors to obtain policies provide and comply with the greatest coverage available for a cost not exceeding such amountminimum Insurance coverages as provided in Section 3.8.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to 21.2 To the fullest extent permitted by law, EPC Contractor shall defend, indemnify and hold harmless the DGCLClient and its officers, which provisions shall not directors, employees, agents, affiliates and representatives (“Indemnitees”) from and against any and all claims, demands, suits, liabilities, proceeding, action, causes of action, losses, expenses, damages, fines, penalties, court costs and reasonable attorneys’ fees (collectively, “Claims”) arising out of or otherwise relating to (a) the EPC Contractor’s breach of this Agreement; (b) any act or omission to act by the EPC Contractor, any subcontractor or supplier of the EPC Contractor, anyone directly or indirectly employed by any of them, or anyone for whose acts they may be amended except liable; (c) violations of Legal Requirements by the EPC Contractor, any subcontractor or supplier of the EPC Contractor, anyone directly or indirectly employed by any of them, or anyone for whose acts they may be liable; (d) the EPC Contractor’s performance or failure to perform as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
this Agreement; (ce) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damagesliability, liabilitiesfines, costs or expenses imposed by a Governmental Authority; (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses"f) in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which negligent acts or omissions occurred prior to or willful misconduct of the Effective TimeEPC Contractor; (g) the EPC Contractor’s operations; or (h) any of the EPC Contractor’s representations or warranties as contained in this Agreement. Without limiting This indemnification, defense and hold harmless obligation shall not be limited by insurance coverages and shall survive the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by each person who is now termination or has been at any time prior to the date expiration of this Agreement, .
21.3 Each Party shall notify the other Parties of any Claims or who threatened Claims in respect of which it is or may be entitled to indemnification under this Article 21. Such Notice shall be given as soon as reasonably practicable after the relevant Party becomes prior to the Effective Time, an officer, director or similar person aware of the Company Claims or any of its Subsidiariesthreatened Claims.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Samples: Epc Agreement
Insurance Indemnity. (a) For six years from The Purchaser will cause the Surviving Corporation to purchase a three-year pre-paid noncancellable directors and officers insurance policy expiring not earlier than October 7, 1999, covering the current and all former directors and officers with respect to acts or failures to act prior to the Effective Time, in a single aggregate amount over the period expiring not earlier than October 7, 1999 equal to the policy limit for the Company's current directors and officers insurance policy (the "CURRENT POLICY"). If such insurance is not obtainable at a cost not in excess of the annual premium paid by the Company for the Current Policy (the "CAP") times 3.25, then the Purchaser will cause the Surviving Corporation shall maintain in effect to purchase policies providing at least the Company's same coverage as the Current Policy and its Subsidiaries' containing terms and conditions no less advantageous to the current directors' and officers' liability insurance policies (former directors and officers of the "Policies") covering those persons -------- who are currently covered by Company than the Policies Current Policy with respect to actions acts or omissions occurring failures to act prior to the Effective Time; provided, however, that in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company Purchaser and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall not be obligated required to obtain policies with providing such coverage except to the greatest extent that such coverage available for a can be provided at an annual cost of no greater than the Cap; and if equivalent coverage cannot exceeding such amountbe obtained, or can be obtained only by paying an annual premium in excess of the Cap, the Purchaser or the Surviving Corporation shall only be required to obtain as much coverage as can be obtained by paying an annual premium equal to the Cap.
(b) The Purchaser shall cause the Surviving Corporation shall to keep in effect in its bylaws provisions By-Laws a provision for a period of not less than six three years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that which have not been resolved prior to the sixth third anniversary of the Effective Time, until such matters are finally resolved) that provide which provides for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from From and after the Effective Time, the -------------- Surviving Corporation Purchaser shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, officer or director or similar person of the Company or any Subsidiary, Subsidiary against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "LossesLOSSES") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") Litigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions existed or occurred at or prior to the Effective Time, whether commenced, asserted or claimed before or after the Effective Time, including, without limitation, liabilities arising under the Securities Act, the Exchange Act and state corporation laws in connection with the transactions contemplated hereby. Without limiting the foregoing, the Surviving Corporation Company and after the Effective Time the Purchaser shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for If the benefit of and ----------- Merger shall be enforceable by each person who is now or has have been at any time prior consummated, the Surviving Corporation shall, to the date fullest extent permitted under applicable law, indemnify and hold harmless the Purchaser and any person or entity who was a stockholder, officer, director or affiliate of this Agreement, or who becomes Purchaser prior to the Effective Time, an officer, director Time against any Losses in connection with any Litigation arising out of or similar person pertaining to any of the Company transactions contemplated by this Agreement or any of its Subsidiariesthe Ancillary Documents. The Purchaser shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(e) If any Litigation described in Section 8.6(cparagraph (c) or (d) of this SECTION 8.8 (each, an "ActionACTION") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with through its counsel, but counsel selected by for the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(cparagraph (c) or (d) of this SECTION 8.8 (each, an "Indemnified -------------- ----------- PartyINDEMNIFIED PARTY") shall be selected by the Indemnified Party, which counsel shall be reasonably acceptable to the Surviving Corporation, and the Indemnified Parties shall be permitted to participate in the defense of such Action through ----- such counsel selected by the Indemnified Party, at the Indemnified PartyCorporation's expense. Notwithstanding the foregoing, if If there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party Parties or there are additional defenses available to any Indemnified PartyParties, such the Indemnified Party Parties shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified PartyParties, at which counsel shall be reasonably acceptable to the Surviving Corporation's expense; provided, however, provided that the Surviving Corporation shall not be obligated to pay -------- ------- the reasonable fees and expenses of more than one counsel for any all Indemnified Party Parties in any single Action except to the extent that, in the opinion of counsel for the Indemnified Parties, two or more of such Indemnified Parties have conflicting interests in the outcome of such Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld. The Purchaser shall cause the Surviving Corporation to cooperate in the defense of any Action.
(f) Purchaser This Section 8.8 is intended to benefit each of the persons referred to herein and shall have no obligations under Section 8.6(c), unless be binding on all successors and -------------- until assigns of the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------Company and the Purchaser.
Appears in 1 contract
Insurance Indemnity. (a) For six years from 17.1. Losses incurred by a third party shall be indemnified for within the Effective Timelimits of 1 000 €. Losses shall be indemnified for by paying to the third party the insurance indemnity, the Surviving Corporation amount of which shall maintain be determined according to legal acts governing civil liability.
17.2. The Insurer shall also indemnify, within the limits of the Sum Insured, for expenses related to the consideration of and replies to the claim; however, the amount of claim shall be paid in effect the Company's first instance.
17.3. The Insurer shall undertake to pay the indispensable and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered reasonable legal expenses related to negligent actions by the Policies with respect to actions or omissions occurring prior Insured.
17.4. If the Insured has indemnified the affected third party for the Damage, the Insurer shall pay the insurance indemnity to the Effective Time; provided, however, that in no event shall -------- ------- Insured.
17.5. If the Surviving Corporation be required to expend in any one year an Sum Insured is smaller than the total amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amountDamage done to all affected third parties, the Surviving Corporation insurance indemnity shall be obligated allocated to obtain policies such third parties in proportion to the Damage done to each of them.
17.6. Where the Insured is guilty for the Damage jointly with other persons, the Insurer shall pay only the share attributable to the Insured, irrespective of whether or not the Insured has indemnified the claimant, in full or in part, for the Damage done jointly with other persons.
17.7. When approaching the Insurer in respect of an event, the Insured shall submit a notice stating:
17.1.1. when, where and under what circumstances the event, which has resulted (or may result) in the filing of a claim, took place;
17.1.2. surnames, legal names, and addresses of persons who/which have filed (or may file) a claim against the Insured;
17.1.3. expected, estimated amount of Damages (claim).
17.8. If the Insured does not agree with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period Insurer’s recognition of not less than six years from third party claims as justified claims, reaching of an amicable agreement with third parties, or satisfaction of third party claims, the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions Insurer shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), pay for any additional expenses arising from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses such disagreement (including attorneys' feesinterest if any), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or ;
17.9. Extended reporting period for claims notification to Insurer is 6 months after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnificationpolicy expiration date.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Samples: Insurance Contract
Insurance Indemnity. (a) For six years from the Effective Time, the Surviving Corporation shall maintain in effect the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; provided, however, that in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from From and after the Effective Time, the -------------- Surviving Corporation CFBI shall indemnify indemnify, defend and hold harmless, harmless to the fullest extent that the Company would have been permitted under applicable law, law each person who isis now, or has been at any time prior to the date hereof or who becomes prior to the Effective Timehereof, an officer, officer or director or similar person of the Company or any Subsidiary(individually, an "Indemnified Party" and collectively, the "Indemnified Parties"), against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedings, ------ arbitrations, investigations proceeding or audits (collectively, "Litigation") investigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts such occurring at or omissions occurred prior to the Effective Time. Without limiting In the foregoingevent of any such claim, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
action, suit, proceeding or investigation (d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action"), (i) -------------- ------ arises or occursany Indemnified Party wishing to claim indemnification shall promptly notify CFBI thereof, (ii) CFBI shall pay the Surviving Corporation shall control the defense reasonable fees and expenses of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party which counsel shall be reasonably acceptable to CFBI, in advance of the final dispositon of any such Action to the full extent permitted to participate by applicable law, upon receipt of any undertaking required by applicable law, and (iii) CFBI will cooperate in the defense of any such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expensematter; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation CFBI shall not be liable for any settlement effected without its written consentconsent and provided, which consent further, that CFBI shall not unreasonably be withheldobligated pursuant to this Section to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single Action except to the extent that, in the opinion of counsel for the Indemnified Parties, under applicable standards of professional conduct, there is a conflict in any one significant issue between the positions of two or more of such Indemnified Parties.
(fb) Purchaser For a period of four years after the Effective Time, CFBI shall have cause to be maintained officers' and directors' liability insurance covering the Indemnified Parties who are currently covered, in their capacities as officers and directors, by the Company's existing officers' and directors' liability insurance policies on terms substantially no obligations under Section 8.6(cless advantageous to the Indemnified Parties than such existing insurance; provided, however, that CFBI shall not be required in order to maintain or procure such coverage to pay an annual premium in excess of one and one-half times the current annual premium paid by the Company for its existing coverage (the "Cap"); and provided, unless further, that if equivalent coverage cannot be obtained, or can be obtained by paying an annual premium in excess of the Cap, CFBI shall only be required to obtain as much coverage as can be obtained by paying an annual premium equal to the Cap; and -------------- until provided, further, however, that such directors and officers may be required to make application and provide customary representations and warranties to CFBI's insurance carrier for the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------purpose of obtaining such coverage.
Appears in 1 contract
Insurance Indemnity. (a) For six years from Upon the Effective Timeexpiration of the Insurance Transition Period, the Surviving Corporation Covisint shall obtain and maintain in full force and effect throughout the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies related License Periods with respect to actions the related License Area the insurance (other than property insurance as to alterations in the Premises or omissions occurring prior to equipment owned by Compuware in the Effective Time; providedPremises, however, that in no event which insurance Compuware shall -------- ------- the Surviving Corporation be carry) required to expend in be maintained by Compuware under any one year an amount in excess of 150% of the annual premiums currently paid related Lease. Upon request by the Company and its Subsidiaries for Compuware, if Covisint carries such insurance coverageseparate from Compuware, and, provided further, that if the -------- ------- annual premiums Covisint shall provide evidence of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies Compuware in accordance with the greatest coverage available for a cost not exceeding requirements of any such amountrelated Lease.
(b) The Surviving Corporation With respect to each Leased Premises, Covisint shall keep owe the same indemnification obligations to Compuware as set forth in effect the Lease covering the License Area as if the words “Owner” or “Landlord” and “Tenant “or “Lessee” or words of similar import, wherever the same appear in its bylaws provisions for a period of not less than six years the related Lease pertaining to indemnification were construed to mean, respectively, “Compuware” and “Covisint”. With respect to all Owned Premises and with respect to any Leased Premises where the related Lease is silent on the indemnification obligations running from the Effective Time (or“Tenant” to “Landlord”, in then for the case of matters occurring prior related License Area, Covisint shall indemnify, defend and hold each Compuware Indemnified Person harmless from and shall defend each Compuware Indemnified Person against all claims made or judicial or administrative actions filed which allege that any Compuware Indemnified Person is liable to the Effective Time that have not been resolved prior claimant (other than to the sixth anniversary extent caused by or arising from a Compuware Indemnified Person’s gross negligence or willful misconduct) by reason of (i) any injury to or death of any person, or damage to or loss of property, or any other thing occurring on or about the Effective TimeLicense Area or the Premises, until such matters are finally resolvedor in any manner growing out of, resulting from or connected with the use, condition or occupancy of, the License Area or the Premises, if caused by any negligent act or willful misconduct of Covisint or its agents, partners, contractors, employees, permitted assignees, licensees, sublessees, invitees or any other person or entity for whose conduct Covisint is legally responsible, (ii) violation by Covisint of any contract or agreement to which Covisint is a party in each case affecting the License Area or the occupancy or use thereof by Covisint and (iii) violation of or failure to observe or perform any condition, provision or agreement of this ARTICLE IV on Covisint’s part to be observed or performed hereunder. Compuware shall similarly indemnify, defend and hold each Covisint Indemnified Person harmless from and shall defend each Covisint Indemnified Person against all claims made or judicial or administrative actions filed which allege that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries any Covisint Indemnified Person is liable to the fullest claimant (other than to the extent caused by or arising from a Covisint Indemnified Person’s negligence or willful misconduct) by reason of (i) any injury to or death of any person, or damage to or loss of property, or any other thing occurring on or about the Premises, or in any manner growing out of, resulting from or connected with the use, condition or occupancy of, the Premises, if caused by any negligent act or willful misconduct of Compuware or its agents, partners, contractors, employees, permitted assignees, licensees, sublessees, invitees or any other person or entity for whose conduct Compuware is legally responsible (other than Covisint), (ii) violation by Compuware of any contract or agreement to which Compuware is a party in each case affecting the DGCLPremises or the occupancy or use thereof by Compuware and (iii) violation of or failure to observe or perform any condition, which provisions shall not provision or agreement of this ARTICLE IV on Compuware’s part to be amended except as required by applicable law observed or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expensesperformed hereunder. In addition, and to the extent applicable, if Compuware is the beneficiary of an indemnity or release from the landlord under a Lease, Compuware shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided use commercially reasonable efforts to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall similarly indemnify and hold harmlessor release Covisint, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for Compuware actually receives the benefit of and ----------- shall be enforceable by each person who is now such indemnity or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any of its Subsidiariesrelease.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Insurance Indemnity. (a) For Parent shall cause the Surviving Corporation to maintain in effect for not less than six years from after the Effective Time, the Surviving Corporation shall maintain in effect the Company's ’s and its Subsidiaries' subsidiaries’ current directors' ’ and officers' liability ’ insurance policies (or policies of at least the "Policies"same coverage containing terms and conditions no less advantageous to the current and all former directors and officers of the Company and its subsidiaries) covering those persons -------- who are currently covered by the Policies with respect to actions acts or omissions occurring failures to act prior to the Effective Time, including acts relating to the transactions contemplated by this Agreement; provided, however, that in no event shall -------- ------- Parent and the Surviving Corporation shall not be required to expend in any one year maintain or obtain policies providing such coverage except to the extent such coverage can be provided at an amount in excess aggregate premium of 150% of no greater than $4,000,000 (the annual premiums currently paid by the Company “Cap”); and its Subsidiaries for such insurance coverageprovided, and, provided further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an aggregate premium in excess of the -------- ------- annual premiums Cap, Parent or the Surviving Corporation shall only be required to obtain as much coverage as can be obtained by paying an aggregate premium equal to the Cap.
(b) For six years after the Effective Time, Parent and the Surviving Corporation shall indemnify and hold harmless to the same extent such Persons are indemnified on the date of this Agreement under the certificate of incorporation and bylaws of the Company and the equivalent organization documents of its subsidiaries to the fullest extent permitted under applicable Law and whether asserted or claimed prior to, at or after the Effective Time, each Person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer or director of the Company or any of its subsidiaries (each, an “Indemnified Party” and collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, liabilities or, subject to the last sentence of this paragraph, amounts paid in settlement, arising in connection with any claim, action, suit, proceeding or investigation (an “Action”) arising out of, relating to or in connection with (i) any acts or omissions occurring or alleged to occur prior to the Effective Time (including, without limitation, acts or omissions in connection with such insurance coverage exceed Persons serving as an officer or director or other fiduciary in any Person if such amountservice was at the request or for the benefit of the Company) or (ii) the adoption and approval of this Agreement, the Merger or the Table of Contents other transactions contemplated by this Agreement or arising out of, relating to or in connection with the transactions contemplated by this Agreement. In the event of any such Action, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, which counsel shall be reasonably acceptable to the Indemnified Party; provided, however, that the Indemnified Party shall be permitted to participate in the defense of such Action through counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to the Surviving Corporation, at the Indemnified Party’s expense. Notwithstanding the foregoing, if there is any conflict between the Surviving Corporation and any Indemnified Parties or there are additional defenses available to any Indemnified Parties, the Indemnified Parties shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Parties, which counsel shall be reasonably acceptable to the Surviving Corporation, and Parent shall cause the Surviving Corporation to pay the reasonable fees and expenses of such counsel, as accrued and in advance of the final disposition of such Action to the fullest extent permitted by applicable Law; provided, however, that the Surviving Corporation shall not be obligated to obtain policies pay the reasonable fees and expenses of more than one counsel for all Indemnified Parties in any single Action except to the extent that, in the opinion of counsel for the Indemnified Parties, two or more of such Indemnified Parties have conflicting interests in the outcome of such Action. Parent and Purchaser acknowledge that the members of the Board of Directors shall be entitled to select their own counsel pursuant to the preceding sentence with respect to any litigation related to the greatest coverage available transactions contemplated hereby; provided, however, that such counsel must be reasonably acceptable to Parent. Any Indemnified Party wishing to claim indemnification under this Section 6.9(b), upon learning of any such claim, action, suit, proceeding or investigation eligible for a cost indemnification under this Section 6.9(b), shall notify the Surviving Corporation, but failure to notify the Surviving Corporation shall not exceeding relieve it from any liability which it may have under this Section 6.9(b), except to the extent that such amount.
(b) failure results in the forfeiture of substantive rights or defenses. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(c) Following the Merger, Parent will cause the Surviving Corporation to, keep in effect in its bylaws provisions for a period of not less than six years from after the Effective Time (or, all provisions in the case Surviving Corporation’s certificate of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) incorporation and bylaws that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries at least to the fullest extent permitted they are presently indemnified by the DGCL, which Company and such provisions shall not be amended except as either required by applicable law Law or except to make changes permitted by law Law that would enhance not adversely effect the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 6.9 are intended for the benefit of and ----------- shall be enforceable by each person who is now or has been at any time prior in addition to the date rights that an Indemnified Party may have under the certificate of this Agreementincorporation, bylaws or who becomes prior to the Effective Time, an officer, director agreements of or similar person of with the Company or any of its Subsidiariessubsidiaries or under applicable Law. Parent agrees to pay all costs and expenses (including reasonable fees and expenses of counsel) that may be incurred by any Indemnified Party in successfully enforcing the indemnity or other obligations under this Section 6.9.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occursParent, the Surviving Corporation or any of their successors or assigns (i) shall control consolidate with or merge into any other Person and shall not be the defense continuing Table of Contents or surviving Person of such Action with counsel selected by consolidation or merger or (ii) shall transfer or convey all or substantially all of its properties and assets to any Person, then and in each such case, Parent shall cause proper provisions to be made so that the successors and assigns of Parent or the Surviving Corporation, providedas the case may be, that shall assume all of the -------- party seeking indemnification pursuant to obligations set forth in this Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld6.9.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under The provisions of this Section 8.6. -----------6.9 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Samples: Merger Agreement (Invitrogen Corp)
Insurance Indemnity. (a) For Parent will cause the Surviving Corporation to maintain in effect for not less than six years from after the Effective Time, the Surviving Corporation shall maintain in effect the Company's and its Subsidiaries' current directors' and officers' liability insurance policies, if such insurance is obtainable (or policies (equivalent in all material respects to those maintained by or on behalf of the "Policies"Company and its Subsidiaries on the date hereof, and having at least the same coverage and containing terms and conditions no less advantageous to the current and all former directors and officers of the Company) covering those persons -------- who are currently covered by the Policies with respect to actions acts or omissions occurring failures to act prior to the Effective Time; provided, however, that in no event shall -------- ------- order to maintain or procure such coverage, Parent and the Surviving Corporation shall not be required to expend in any one year maintain or obtain policies providing such coverage except to the extent such coverage can be provided at an amount in excess annual cost of 150% of no greater than two times the most recent annual premiums currently premium paid by the Company prior to the date hereof (the "Cap"); and its Subsidiaries for such insurance coverageprovided, and, provided further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the -------- ------- annual premiums of such insurance coverage exceed such amountCap, Parent or the Surviving Corporation shall be obligated required to only obtain policies with as much coverage as can be obtained by paying an annual premium equal to the greatest coverage available for a cost not exceeding such amountCap.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from From and after the Effective Time, Parent and the -------------- Surviving Corporation shall indemnify and hold harmless, harmless to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, officer or director or similar person of the Company or any Subsidiaryof its Subsidiaries (each, an "Indemnified Party") against all losses, claims, damages, liabilities, costs or expenses (including attorneys' attorneys fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedings, ------ arbitrations, investigations proceeding or audits (collectively, "Litigation") investigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by each person who is now whether asserted or has been claimed prior to, at any time prior to the date of this Agreement, or who becomes prior to after the Effective Time. In the event of any such claim, an officeraction, director suit, proceeding or similar person of the Company or any of its Subsidiaries.
investigation (e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs), the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, which counsel shall be reasonably acceptable to the Indemnified Party; provided, however, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") Party shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to the Surviving Corporation, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party Parties or there are additional defenses available to any Indemnified PartyParties, such the Indemnified Party Parties shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified PartyParties, at which counsel shall be reasonably acceptable to the Surviving Corporation's expense, and Parent shall cause the Surviving Corporation to pay the reasonable fees and expenses of such counsel, as accrued and in advance of the final disposition of such Action to the full extent permitted by applicable law; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the reasonable fees and expenses of more than one counsel for all Indemnified Parties in any single Action except to the extent that the Surviving Corporation and any Indemnified Party have conflicting interests in the outcome of such Action.
(c) Parent shall cause the Surviving Corporation to keep in effect for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time which have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) all provisions in the Surviving Corporation's Certificate of Incorporation and Bylaws that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company to the fullest extent permitted by the DGCL, and such provisions shall not be amended except as either required by applicable Law or to make changes permitted by Law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses.
(d) If Parent or the Surviving Corporation or any single Action. The of their respective successors or assigns (i) shall consolidate with or merge into any other corporation or other entity and shall not be the continuing or surviving corporation or entity of the consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then and in each such case, proper provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheldassume all of the obligations set forth in this Section 5.8.
(fe) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under The provisions of this Section 8.6. -----------5.8 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Samples: Merger Agreement (Cendant Corp)
Insurance Indemnity. (a) For six years Borrower shall, at its own expense, maintain and keep in force insurance of the types and in amounts customarily carried by educational institutions similar to Borrower, including but not limited to:
(i) fire and property damage, insurance with extended coverage for the Facility, in an amount at least equal to the lesser of insurable value and outstanding amount of the Loan,
(ii) public liability, in an amount at least equal to $ per occurrence and $ annual aggregate,
(iii) flood, if the Property is located in a flood zone, and
(iv) workers’ compensation; with all such insurance carried with companies, in amounts and with deductible amounts reasonably satisfactory to Lender, and shall deliver to Lender from time to time at Lender’s request schedules setting forth all insurance then in effect. Alternatively, upon the Effective Timewritten approval of Lender, Borrower may insure the Surviving Corporation Facility under a blanket insurance policy or policies which cover not only the Facility, but also other properties of Borrower or, upon prior written approval of Lender, may provide self-insurance acceptable to Lender. Borrower shall be required to obtain, maintain or keep in effect the Company's and its Subsidiaries' current directors' and officers' liability force earthquake insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; provided, however, that in no event shall -------- ------- Facility only if required by a regulatory agency with jurisdiction over the Surviving Corporation be required to expend in any one year an amount in excess of 150% Lender. All of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation policies required hereunder shall be obligated issued by corporate insurers licensed to obtain policies with do business in the greatest coverage available for a cost not exceeding such amountState and rated A or better by A.M. Best Company, and shall be in form reasonably acceptable to Lender.
(b) Except for workers’ compensation, all certificates of insurance and “blanket” insurance policies shall reference the specific project being covered by name and address and, at the request of Lender, shall name Lender as loss payee or additional insured, as appropriate. The Surviving Corporation insurance shall keep in effect in its bylaws provisions for be evidenced by the original policy or a period true and certified copy of not less than six years from the Effective Time (ororiginal policy, or in the case of matters occurring prior liability insurance, by certificates of insurance. The insurance policies (or true and certified copies thereof) or certificates of all insurance required to be maintained hereunder shall be delivered to Lender contemporaneously with Borrower’s execution of this Master Loan Agreement. Borrower shall use its best efforts to deliver originals or copies of all policies and renewals (or certificates evidencing the same), marked “paid” (or evidence satisfactory to Lender of the continuing coverage) to Lender at least days before the expiration of existing policies and, in any event, Borrower shall deliver originals of such policies or certificates to Lender at least days before the expiration of existing policies. If Lender has not received satisfactory evidence of such renewal or substitute insurance in the time frame herein specified, Lender shall have the right, but not the obligation, to purchase such insurance for Lender’s interest only. Nothing contained in this Section shall require Lender to incur any expense or take any action hereunder, and inaction by Lender shall never be considered a waiver of any right accruing to Lender on account of this Section. If any loss shall occur at any time while an Event of Default shall have occurred and be continuing, Lender shall be entitled to the Effective Time that have not been resolved prior benefit of all insurance policies held or maintained by Borrower, to the sixth anniversary same extent as if same had been made payable to Lender and upon foreclosure hereunder, Lender shall become the owner thereof. Lender shall have the right, but not the obligation to make premium payments, at Borrower’s expense, to prevent any cancellation, endorsement, alteration or reissuance of the Effective Timeany policy of insurance maintained by Borrower, until and such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted payments shall be accepted by the DGCL, which provisions shall not be amended except as required by applicable law or except insurer to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaserprevent same.
(c) Subject Borrower shall give to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, Lender immediate notice of any material loss occurring on or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing Facility. All insurance proceeds for damage to the fullest extent permitted under applicable law provided that Facility shall be payable to Lender and Authority as hereinafter provided. Borrower shall furnish to Lender, upon request, certificates of insurance evidencing such coverage while the person to whom the expenses are advanced provides an undertaking to repay such advance if it Loan is ultimately determined that such person is not entitled to indemnificationoutstanding.
(d) The provisions of If requested by Lender, any insurance policy carried or maintained pursuant to this Section 8.6 are intended for the benefit of and ----------- (other than workers’ compensation insurance) shall be enforceable by each person who is now so written or has been at any time prior endorsed as to make losses payable to Lender and Authority or Borrower, as their respective interests may appear and naming Lender as additional insured for liability. The Net Proceeds of the insurance required in this Section shall be applied as provided in Article IX hereof. Each property or liability insurance policy provided for in this Section shall contain a provision to the date of this Agreement, effect that the insurance company providing such policy shall not either cancel the policy or who becomes prior modify the policy materially and adversely to the Effective Time, an officer, director interest of Lender without first giving written notice thereof to Lender at least (i) days in advance of such cancellation or similar person modification for any reason other than nonpayment of premium and (ii) days in advance of such cancellation or modification due to nonpayment of premium (provided that the Company or any foregoing shall not release the Borrower of its Subsidiariesobligations to comply with the insurance requirements set forth herein).
(e) If As among Lender, Authority and Borrower, Borrower assumes all risks and liabilities from any Litigation described cause whatsoever, whether or not covered by insurance, for loss or damage to the Facility, and for injury to or death of any person or damage to any property, whether such injury or death be with respect to agents or employees of Borrower or of third parties, and whether such property damage be to Borrower’s property or the property of others, except to the extent that any of the foregoing are caused by the gross negligence or willful misconduct of Lender. Whether or not covered by insurance, Borrower hereby assumes responsibility for and agrees to reimburse Lender and Authority for and will indemnify, defend and hold Lender and Authority and any of their assignees, agents, employees, officers and directors harmless from and against all liabilities, obligations, losses, damages, penalties, claims, actions, costs and expenses (including reasonable attorneys’ fees) of whatsoever kind and nature, imposed on, incurred by or asserted against Lender or Authority or their assignees, agents, employees, officers and directors that in Section 8.6(c) (eachany way relate to or arise out of this Master Loan Agreement, an "Action") -------------- ------ arises any Draw Request or occursthe Loan, the Surviving Corporation shall control transactions contemplated hereby and thereby and the defense Facility, including but not limited to, (i) the ownership of such Action with counsel selected by the Surviving CorporationFacility, provided(ii) the delivery, that lease, possession, maintenance, use condition, non-use, return or operation (or lack of operation) of components of the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------Facility,
Appears in 1 contract
Samples: Master Loan Agreement
Insurance Indemnity. (a) For a period of six years from following the Effective Time, Purchaser shall indemnify, defend and hold harmless to the fullest extent permitted under applicable law each Person who is now or has been an officer or director of the Company (individually, an "Indemnified Person" and collectively, the "Indemnified Persons"), against all Losses, actually incurred by the Indemnified Person in connection with any Proceeding arising out of or pertaining to acts or omissions (other than intentional misconduct, illegal acts or acts of fraud), or alleged acts or omissions (other than intentional misconduct, illegal acts or acts of fraud), by them in their capacities as such, whether commenced, asserted or claimed before or after the Effective Time; provided, however, that no indemnification shall be made to any Indemnified Person to the extent it is finally determined by a court of competent jurisdiction (after all rights to appeal shall have expired) that such Indemnified Person did not, with the respect to the matter subject to indemnification hereunder, act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company (or any Subsidiary thereof). In the event of any such Proceeding, (i) Purchaser shall pay the reasonable fees and expenses of counsel selected by the Indemnified Person, which counsel shall be reasonably acceptable to Purchaser, in advance of the final disposition of any such Proceeding to the full extent and under all circumstances permitted by the DGCL as in effect on the date hereof, upon receipt of any undertaking required by applicable law, and (ii) Purchaser will direct the defense of any such matter; provided further, however, that Purchaser shall not be obligated pursuant to this Section 6.2 to pay the fees and disbursements of more than one counsel for all Indemnified Persons in any single Proceeding, except to the extent that, in the opinion of counsel for the Indemnified Persons, two or more of such Indemnified Persons have conflicting interests in the outcome of such action.
(b) From and after the Effective Time, Purchaser shall purchase and maintain or cause the Surviving Corporation shall maintain in effect to purchase and maintain, for a period of six years following the Company's and its Subsidiaries' current Effective Time, policies of directors' and officers' liability insurance policies (covering each Person who was a director or officer of the "Policies") covering those persons -------- who are currently covered by Company at any time prior to the Policies Effective Time with respect to actions claims arising from facts or omissions occurring events that occurred on or prior to the Effective Time and providing at least the same coverage and amounts and containing terms that are no less advantageous to the insured parties as those in effect immediately prior to the Effective Time; provided, however, that in no event shall -------- ------- if the Surviving Corporation be required to expend in any one year an amount in excess of 150aggregate annual premiums for such insurance exceed 300% of the annual per annum rate of premiums currently paid by the Company and its Subsidiaries for such insurance coverageinsurance, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, then the Surviving Corporation shall provide the maximum coverage that shall then be obligated available at an annual premium equal to obtain policies with the greatest coverage available for a cost not exceeding 300% of such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaserrate.
(c) Subject Each of Purchaser and Merger Sub covenants for itself and its successors and assigns, that it and they shall not (other than in the case of intentional misconduct, illegal acts or acts of fraud) institute any action or proceeding in any court or before any administrative agency or before any other tribunal against any of the current directors or officers of the Company, in their capacity as such, with respect to Section 8.6(fany liabilities, actions or causes of action, judgments, claims or demands of any nature or description (consequential, compensatory, punitive or otherwise), including in each such case any of the foregoing relating to, arising out of or resulting from and after this Agreement or the Effective Time, transactions contemplated by this Agreement. Neither Purchaser nor the -------------- Surviving Corporation shall, nor shall indemnify either permit any of the Subsidiaries of the Surviving Corporation to, take any action directly or indirectly to disaffirm or adversely affect the provisions of the articles of organization and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at bylaws and any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person other written agreements of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties of its Subsidiaries that provide indemnification of and amounts paid in settlement (collectively, "Losses") in connection with expense reimbursement to any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnificationIndemnified Person.
(d) The provisions of this Section 8.6 are intended for 6.2 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person to whom this Section 6.2 applies without the benefit consent of and ----------- such Indemnified Person (it being expressly agreed that the Indemnified Persons to whom this Section 6.2 applies shall be enforceable by each person who is now or has been at any time prior to the date third party beneficiaries of this AgreementSection 6.2 and shall be entitled to enforce the covenants contained herein) and each party entitled to insurance coverage under this Section 6.2, respectively, and his or who becomes prior her heirs and legal representatives, and shall be in addition to any other rights an Indemnified Person may have under the Effective Time, an officer, director certificate or similar person articles of incorporation or bylaws of the Surviving Company or any of its Subsidiaries, under the DGCL or otherwise.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Insurance Indemnity. (a) For a period of six (6) years from following the Effective Time, Purchaser shall cause the Surviving Corporation shall maintain in effect the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; providedindemnify, however, that in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify defend and hold harmless, harmless to the fullest extent permitted under applicable law, Law each person Person who is, is now or has been at any time prior to the date hereof an officer or who becomes prior to the Effective Time, an officer, director or similar person of the Company (or any SubsidiarySubsidiary thereof) (individually, an “Indemnified Person” and collectively, the “Indemnified Persons”), against all losses, claims, damages, liabilities, costs or expenses (including reasonable attorneys' ’ fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") actually incurred by the Indemnified Person in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") Proceeding arising ---------- before or after the Effective Time out of or pertaining to acts or omissionsomissions (other than illegal acts or acts of fraud), or alleged acts or omissionsomissions (other than illegal acts or acts of fraud), by them prior to the Effective Time in their capacities as such, which acts whether commenced, asserted or omissions occurred prior to claimed before or after the Effective Time; provided, however, that no indemnification shall be made to any Indemnified Person to the extent it is finally determined by a court of competent jurisdiction (after all rights to appeal shall have expired) that such Indemnified Person did not, with respect to the matter subject to indemnification hereunder, act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company (or any Subsidiary thereof). Without limiting In the foregoingevent of any such Proceeding, (i) the Surviving Corporation shall periodically advance pay the reasonable fees and expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified PartyPerson, at which counsel shall be reasonably acceptable to the Indemnified Party's expense. Notwithstanding Surviving Corporation, in advance of the foregoingfinal disposition of any such Proceeding to the full extent and under all circumstances permitted by the DGCL as in effect on the date hereof, if there is upon receipt of any actual or potential conflict between undertaking required by applicable Law, and (ii) the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in will direct the defense of any such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expensematter; providedprovided further, however, that the Surviving Corporation shall not be obligated pursuant to this Section 6.2 to pay -------- ------- the fees and expenses disbursements of more than one counsel for any all Indemnified Party Persons in any single Action. The Proceeding, except to the extent that, in the opinion of counsel for the Indemnified Persons, two or more of such Indemnified Persons have conflicting interests in the outcome of such action.
(b) From and after the Effective Time, Purchaser shall either, at its option: (A) purchase and maintain or cause the Surviving Corporation to purchase and maintain, for a period of six (6) years following the Effective Time, policies of directors’ and officers’ liability insurance reasonably acceptable to the Company and covering each Person who was a director or officer of the Company at any time prior to the Effective Time with respect to claims arising from facts or events that occurred on or prior to the Effective Time and providing at least the same coverage and amounts and containing terms that are no less advantageous to the insured parties as those in effect immediately prior to the Effective Time; provided, however, if the aggregate annual premiums for such insurance exceed 225% of the per annum rate of premiums currently paid by the Company for such insurance, then the Surviving Corporation shall provide the maximum coverage that shall then be available at an annual premium equal to 225% of such rate, or (B) cause the Surviving Corporation to purchase “tail” coverage pursuant to the Company’s directors’ and officers’ liability insurance in effect immediately prior to the Effective Time for a six (6) year period, in which case Purchaser shall following the Effective Time cause the Surviving Corporation not be liable for to seek to revoke such tail coverage. The Company shall promptly notify Purchaser of any settlement effected without its written consentclaims made, which consent shall not unreasonably be withheldor any facts or circumstances reasonably likely to lead to claims, prior to the Effective Time pursuant to such policy.
(fc) Neither Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until nor the Surviving Corporation is unable shall, nor shall either permit any of the Subsidiaries of the Surviving Corporation to, take any action directly or indirectly to satisfy disaffirm or adversely affect the provisions of the articles of organization and bylaws and any other written agreements of the Company or any of its Subsidiaries that provide indemnification obligations of and expense reimbursement to any Indemnified Person.
(d) The provisions of this Section 6.2 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person to whom this Section 6.2 applies without the consent of such Indemnified Person (it being expressly agreed that the Indemnified Persons to whom this Section 6.2 applies shall be third party beneficiaries of this Section 6.2 and shall be entitled to enforce the covenants contained herein) and each party entitled to insurance coverage under this Section 8.6. -----------6.2, respectively, and his or her heirs and legal representatives, and shall be in addition to any other rights an Indemnified Person may have under the certificate or articles of incorporation or bylaws of the Surviving Company or any of its Subsidiaries, under the DGCL or otherwise.
(e) In the event Purchaser or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers 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 Purchaser or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.2.
Appears in 1 contract
Samples: Merger Agreement (Clorox Co /De/)
Insurance Indemnity. (a) For six years All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time existing in favor of the current or former directors or officers of the Company or each of its Subsidiaries as provided in their respective certificate of incorporation or bylaws (or comparable organizational documents) will be assumed by Parent and Parent will be directly responsible for such indemnification, without further action, as of the Effective Time and will continue in full force and effect in accordance with their respective terms. In addition, from and after the Effective Time, directors and officers of the Company who become or remain directors or officers of Parent or the Surviving Corporation shall will be entitled to the same indemnity rights and protections (including those provided by directors' and officers' liability insurance) of Parent. Notwithstanding any other provision hereof, the provisions of this Section 5.8 (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
(b) Parent will, and will cause the Surviving Corporation to, maintain in effect for not less than three years after the Company's and its Subsidiaries' current Effective Time policies of directors' and officers' liability insurance policies equivalent in all material respects to those maintained by or on behalf of the Company and its Subsidiaries on the date hereof (and having at least the "Policies") covering those persons -------- who same coverage and containing terms and conditions which are no less advantageous to the Persons currently covered by the Policies such policies as insured) with respect to actions matters existing or omissions occurring at or prior to the Effective Time; providedPROVIDED, howeverHOWEVER, that in no event shall -------- ------- if the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the aggregate annual premiums for such insurance at any time during such period exceed per annum rate of premium currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by each person who is now or has been at any time prior to on the date of this Agreement, or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, then Parent will cause the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporationto, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between and the Surviving Corporation and any Indemnified Party or there are additional defenses will, provide the maximum coverage that shall then be available at an annual premium equal to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheldrate.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Samples: Merger Agreement (Innovex Inc)
Insurance Indemnity. (a) For Parent will cause the Surviving Corporation to maintain in effect for not less than six (6) years from after the Effective Time, the Surviving Corporation shall maintain in effect the Company's and its Subsidiaries' ’s current directors' directors and officers' liability ’ insurance policies (or policies of at least the "Policies"same coverage containing terms and conditions no less advantageous to the current and all former directors and officers of the Company) covering those persons -------- who are currently covered by the Policies with respect to actions acts or omissions occurring failures to act prior to the Effective Time, including acts relating to the transactions contemplated by this Agreement; provided, however, that in no event shall -------- ------- Parent and the Surviving Corporation shall not be required to expend in any one year maintain or obtain policies providing such coverage except to the extent such coverage can be provided at an amount in excess annual cost of no greater than 150% of the most recent annual premiums currently premium paid by the Company prior to the date hereof (the “Cap”); and its Subsidiaries for such insurance coverageprovided, and, provided further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the -------- ------- annual premiums of such insurance coverage exceed such amountCap, Parent or the Surviving Corporation shall only be obligated required to obtain policies with as much coverage as can be obtained by paying an annual premium equal to the greatest coverage available for a cost not exceeding such amountCap.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from From and after the Effective Time, Parent and the -------------- Surviving Corporation shall jointly and severally indemnify and hold harmless, harmless to the fullest extent permitted under applicable lawLaw, each person Person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, officer or director or similar person of the Company or any Subsidiaryof its Subsidiaries (each, an “Indemnified Party”), so long as such Person is, or has been, acting within the scope of such Person’s employment or fiduciary duties, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' ’ fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedings, ------ arbitrations, investigations proceeding or audits (collectively, "Litigation") investigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by each person who is now whether asserted or has been claimed prior to, at any time prior to the date of this Agreement, or who becomes prior to after the Effective Time. In the event of any such claim, an officeraction, director suit, proceeding or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occursinvestigation, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, which counsel shall be reasonably acceptable to the Indemnified Party; provided, however, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") Party shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's ’s expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party Parties or there are additional defenses available to any Indemnified PartyParties, such the Indemnified Party Parties shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at Parties and Parent shall cause the Surviving Corporation's expenseCorporation to pay the reasonable fees and expenses of such counsel, as accrued and in advance of the final disposition of such Action to the fullest extent permitted by applicable Law; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the reasonable fees and expenses of more than one counsel (in addition to any necessary local counsel) for any all Indemnified Party Parties in any single Action except to the extent that Indemnified Parties have conflicting interests in the outcome of such Action.
(c) Parent shall cause the Surviving Corporation to keep in effect in its Amended Articles of Incorporation and Amended and Restated By-Laws provisions at least as favorable as the provisions in the Company’s Certificate of Incorporation and By-Laws that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company to the fullest extent permitted by the MBCL, so long as such Person is, or has been, acting within the scope of such Person’s employment or fiduciary duties, and such provisions shall not be amended except as either required by applicable Law or to make changes permitted by Law that would enhance the rights of past or present officers and directors to exculpation, indemnification or advancement of expenses.
(d) If Parent or the Surviving Corporation or any of their respective successors or assigns: (i) shall consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall 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 Parent or the Surviving Corporation shall assume all of the obligations set forth in this Section 5.8.
(e) The provisions of this Section 5.8 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives, and shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, pursuant to Law, contract or otherwise. The Surviving Corporation shall not pay all expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity obligations provided for in this Section 5.8.
(f) Notwithstanding anything to the contrary in this Section 5.8, neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent, which consent shall not be unreasonably be withheldwithheld or delayed.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Samples: Agreement and Plan of Merger (DRS Technologies Inc)
Insurance Indemnity. (a) For six years from From and after the Effective Time, Univision will indemnify, defend and hold harmless to the Surviving Corporation shall maintain in effect fullest extent that HBC would have been permitted under applicable law each person who is now, or has been at any time before the Company's date of this Agreement, an officer or director of HBC (individually, an "Indemnified Party" and its Subsidiaries' current directors' and officers' liability insurance policies (collectively, the "PoliciesIndemnified Parties"), against all losses, claims, damages, liabilities, costs or expenses (including reasonable attorneys' fees), judgments, fines, penalties and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such occurring at or before the Effective Time. In the event of any such claim, action, suit, proceeding or investigation (an "Action"),
(1) covering those persons -------- who are currently covered any Indemnified Party wishing to claim indemnification must promptly notify Univision thereof;
(2) Univision must pay the reasonable fees and expenses of counsel selected by the Policies Indemnified Party, which counsel shall be reasonably acceptable to Univision, in advance of the final disposition of any such Action to the full extent permitted by applicable law, upon receipt of any undertaking required by applicable law;
(3) Univision will cooperate in the defense of any such matter; provided that Univision will not be liable for any settlement effected without its written consent and provided, further, that Univision shall not be obligated pursuant to this Section to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single Action except to the extent that in the opinion of counsel for the Indemnified Parties reasonably satisfactory to Univision, two or more of such Indemnified Parties have conflicting interests in the outcome of such action;
(4) Univision will obtain the prior written approval of the Indemnified Party before entering into or making any settlement, compromise, admission, or acknowledgment of the validity of any third-party action or any liability in respect thereof if, pursuant to or as a result of such settlement, compromise, admission, or acknowledgment, injunctive or other equitable relief would be imposed against the Indemnified Party or if, in the reasonable opinion of the Indemnified Party, such settlement, compromise, admission, or acknowledgment could have a material adverse effect on its business, operations, assets or financial condition;
(5) Univision will not consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such third-party action; and
(6) Univision will not be entitled to control (but will be entitled to participate at its own expense in the defense of), and the Indemnified Party will be entitled to have sole control over, the defense or settlement, compromise, admission, or acknowledgment of any third-party action (1) as to which Univision fails to assume the defense within a reasonable length of time or (2) to the extent the third-party action seeks an order, injunction, or other equitable relief against the Indemnified Party which, if successful, would materially adversely affect the business, operations, assets, or financial condition of the Indemnified Party; provided that the Indemnified Party shall make no settlement, compromise, admission, or acknowledgment that would give rise to liability on the part of Univision without the prior written consent of Univision. No Indemnified Party will be entitled to indemnity hereunder if it consents to the entry of any judgment or enters into any settlement with respect to actions a third party action over which it has sole control that does not include as an unconditional term thereof the giving by each claimant or omissions occurring prior plaintiff to the Effective Time; provided, however, that Univision of a release from all liability in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums respect of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amountthird-party action.
(b) The Univision must cause the Surviving Corporation shall of the Merger to keep in effect in its bylaws provisions for a period of not less than six five years from following the Effective Time (or, provisions in the case its Certificate of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide Incorporation and bylaws providing for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past Indemnified Parties as are currently set forth in the HBC Certificate of Incorporation and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCLbylaws, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance enlarge the rights Indemnified Parties' right of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaserindemnification.
(c) Subject to Section 8.6(f), from and For five years after the Effective Time, Univision must cause to be maintained officers' and directors' liability insurance covering the -------------- Surviving Corporation shall indemnify and hold harmlessIndemnified Parties who are currently covered, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as suchofficers and directors, which acts or omissions occurred prior by HBC's existing officers' and directors' liability insurance policies on terms substantially no less advantageous to the Effective Time. Without limiting Indemnified Parties than such existing insurance; provided that Univision will not be required to maintain or procure such coverage to pay an annual premium in excess of one and one-half times the foregoingcurrent annual premium paid by HBC for its existing coverage (the "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 Surviving Corporation shall periodically advance expenses Cap, Univision will only be required to obtain as incurred with respect much coverage as can be obtained by paying an annual premium equal to the foregoing to the fullest extent permitted under applicable law provided Cap. HBC represents and warrants that the person to whom the expenses are advanced provides an undertaking to repay such advance if it current annual premium paid by HBC for its existing coverage is ultimately determined that such person is not entitled to indemnification$450,000.
(d) The provisions of this Section 8.6 will survive the consummation of the Merger and expressly are intended for the to benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its SubsidiariesIndemnified Parties.
(e) If At Closing, Univision will execute indemnification agreements in the form attached to Univision's Reports with any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises HBC directors and officers who become directors or occurs, the Surviving Corporation shall control the defense executive officers of such Action with counsel selected by Univision or the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Insurance Indemnity. (a) For six years from Parent shall, or shall cause the Effective Time, the --------------------- Surviving Corporation shall to maintain in effect for a period of six years after the Effective Time the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies"or policies containing substantially similar coverage) covering those persons -------- who are currently covered by the Policies with respect to actions acts or omissions occurring failures to act prior to or as of the Effective TimeTime (other than to the extent the available limit of any such insurance policy may be reduced or exhausted by reason of the payment of claims thereunder); provided, however, that in no event shall order to -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for maintain or procure such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, neither Parent nor the Surviving Corporation shall be obligated required to obtain policies with pay an annual premium in excess of 175% of the greatest current annual premium paid by the Company for its existing coverage available for a cost (the "Cap Amount"); ---------- and provided, further, that if equivalent coverage cannot exceeding such amount.
(b) The be obtained, or can be -------- ------- obtained only by paying an annual premium in excess of the Cap Amount, Parent and the Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior only be required to obtain as much coverage as can be obtained by paying an annual premium equal to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from Cap Amount. From and after the Effective Time, Parent shall, and shall cause the -------------- Surviving Corporation shall to, indemnify and hold harmless, harmless to the fullest full extent permitted under applicable lawthe Articles of Incorporation of the Company as in effect on the date hereof, each person who isis a current or former officer or director of the Company, or has been at any time prior to the date hereof or who becomes prior to the Effective Timeits Subsidiaries (each, an officer, director or similar person of the Company or any Subsidiary, "Indemnified Party") against all losses, claims, ------------------ damages, liabilities, costs or expenses (including reasonable attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedingsproceeding or investigation arising out of or pertaining to matters existing or occurring at or prior to the Effective Time, ------ arbitrationswhether asserted or claimed prior to, investigations or audits (collectively, "Litigation") arising ---------- before at or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, (and Parent and the Surviving Corporation shall periodically also advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law the Articles of Incorporation of the Company as in effect on the date hereof provided that the person Indemnified Party to whom the expenses are advanced provides an undertaking to repay such advance advances if it is ultimately determined that such person Indemnified Party is not entitled to indemnification.
). In the event of any such claim, action, suit, proceeding or investigation (d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs), the Surviving Corporation indemnifying party shall control the defense of such Action with ------ counsel selected by the Surviving Corporationit; provided, providedhowever, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") Party shall be -------- permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, it at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between .
(b) Parent and the Surviving Corporation agree that the provisions of the Company's Articles of Incorporation and any Bylaws in effect as of the date of this Agreement affecting the Indemnified Party or there are additional defenses available Parties' rights to any indemnification and limitation of liability existing in favor of the Indemnified Party, such Indemnified Party shall be permitted to participate Parties as provided in the defense Company's Articles of such Action with counsel selected Incorporation and Bylaws as in effect as of the date of this Agreement shall survive the Merger and shall continue in full force and effect, without any amendment thereto (unless required by the Indemnified PartyCGCL or federal law), at for a period of six years from the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheldEffective Time.
(fc) Purchaser In the event that Parent or any of its successors or assigns consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of such consolidation or merger proper provision shall have no be made so that the successors and assigns of Parent assume the obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under set forth in this Section 8.6. -----------6.11.
Appears in 1 contract
Insurance Indemnity. (a) For The Surviving Corporation shall, and, if applicable, Parent shall cause the Surviving Corporation to, maintain in effect for not less than six years from after the Effective Time the current directors' and officers' insurance policies (or policies containing substantially similar coverage) of the Company with respect to acts or failures to act prior to or as of 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 payment of claims thereunder); provided, however, that in order to maintain or procure such coverage, neither Parent nor the Surviving Corporation, as applicable, shall be required to pay, in the aggregate, an annual premium in excess of 200% of the current annual premium paid by Parent or the Company for its existing coverage (the "Cap Amount"); and provided, further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the Cap Amount, the Parent 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 Cap Amount. From and after the Effective Time, the Surviving Corporation shall, and, if applicable, Parent shall maintain in effect the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; provided, however, that in no event shall -------- ------- cause the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverageto, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, and provide advancement of expenses to, to the fullest extent permitted under applicable law, each person who is, is a current or has been at any time prior to the date hereof former officer or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any SubsidiarySubsidiaries (each, an "Indemnified Party") against all losses, claims, damages, liabilities, costs or expenses (including reasonable attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedings, ------ arbitrations, investigations proceeding or audits (collectively, "Litigation") investigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting In the foregoingevent of any such claim, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
action, suit, proceeding or investigation (d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs), the Surviving Corporation indemnifying party shall control the defense of such Action with counsel selected by the Surviving Corporationit; provided, providedhowever, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with through counsel selected by it at the Indemnified Party, at the Surviving Corporation's expense; provided. (b) Parent agrees that, howeverin the event the Alternative Merger is consummated, that the Surviving Corporation provisions of the Company Restated Certificate of Incorporation and By-laws in effect as of the date of this Agreement affecting the Indemnified Parties' rights to indemnification, limitation of liability and advancement of expenses shall not survive the consummation of the Alternative Merger and shall continue in full force and effect, without any amendment thereto (unless required by DGCL or federal law), for a period of six years from the Effective Time. Parent agrees that, in the event the Parent Merger is consummated the Indemnified Parties shall for a period of six years after the Effective Time, be obligated entitled to pay -------- ------- the fees benefit of the provisions of Parent's Restated Certificate of Incorporation and By-laws relating to indemnification, limitation of liability and advancement of expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheldofficers and directors of Parent.
(fc) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under The provisions of this Section 8.6. -----------6.9 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Insurance Indemnity. (a) For six years from the Effective Time, the Surviving Corporation shall maintain in effect the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective TimePolicies; provided, however, that in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150200% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation Purchaser shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as suchsuch (including without limitation acts or omissions with respect to the transactions contemplated by this Agreement), which acts or omissions occurred prior to no later than the Effective Time. Without limiting the foregoing, the Surviving Corporation Purchaser shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification. The rights of past and present officers and directors to indemnification and advancement of expenses set forth in this Section 8.6 shall be in addition to and not in lieu of any rights that any such person is entitled to under any agreement between the Company and such person in effect as of the date of this Agreement.
(d) If, after the Effective Time, Purchaser or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties or assets to any person, then, in each such case, proper provisions shall be made so that successors and assigns of Purchaser or the 32 37 Surviving Corporation, as the case may be, shall assume such entity's obligations set forth in this Section 8.6. The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that which counsel shall be reasonably acceptable to the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") ), provided that the Indemnified Party shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense, except to the extent otherwise provided in the Surviving Corporation's bylaws, any agreement between the Indemnified Party and the Company in effect as of the date of this Agreement or any agreement between the Indemnified Party and the Surviving Corporation entered into after the Effective Time. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Except to the extent otherwise provided in the Surviving Corporation's bylaws, any agreement between the Indemnified Party and the Company in effect as of the date of this Agreement or any agreement between the Indemnified Party and the Surviving Corporation entered into after the Effective Time, the Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------.
Appears in 1 contract
Samples: Merger Agreement (Telelogic Ab)
Insurance Indemnity. (a) For six (6) years from the Effective Time, the Surviving Corporation or EarthLink shall (i) maintain in effect the CompanyCidco's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies"), or (ii) provide substantially similar insurance coverage within a new insurance policy or within EarthLink's existing insurance policies, in any case covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; provided, however, that in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company Cidco and its Subsidiaries for such insurance coverage, and, provided provided, further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest optimum coverage (in EarthLink's reasonable and good faith judgment) available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six two years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth second anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company Cidco and its Subsidiaries to the fullest extent permitted by the DGCLSubsidiaries, as set forth therein, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expensesexpenses (though such enhancing changes are not required by this provision), and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company Cidco and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 5.14 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company Cidco or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Samples: Merger Agreement (Earthlink Inc)
Insurance Indemnity. (a) For Purchaser will cause the Surviving Corporation to maintain in effect for not less than six years from after the Effective Time, the Surviving Corporation shall maintain in effect Company's current directors and officers insurance policies, if such insurance is obtainable (or policies of at least the same coverage containing terms and conditions no less advantageous to the current and all former directors and officers of the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions acts or omissions occurring failures to act prior to the Effective Time; provided, however, that in no event shall -------- ------- the Surviving Corporation be required order to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for maintain or procure such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall not be obligated required to maintain or obtain policies providing such coverage except to the extent such coverage can be provided at an annual cost of no greater than three times the most recent annual premium paid by the Company prior to the date hereof (the "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 Cap, Purchaser or the Surviving Corporation shall only be required to obtain policies with as much coverage as can be obtained by paying an annual premium equal to the greatest coverage available for a cost not exceeding such amountCap.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from From and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, harmless to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, officer or director or similar person of the Company or any Subsidiaryof the Subsidiaries (each, an "Indemnified Party") against all losses, claims, damages, liabilities, reasonable costs or reasonable expenses (including reasonable attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedings, ------ arbitrations, investigations proceeding or audits (collectively, "Litigation") investigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by each person who is now whether asserted or has been claimed prior to, at any time prior to the date of this Agreement, or who becomes prior to after the Effective Time. In the event of any such claim, an officeraction, director suit, proceeding or similar person of the Company or any of its Subsidiaries.
investigation (e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs), the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, which counsel shall be reasonably acceptable to the Indemnified Party; provided, however, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") Party shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to the Surviving Corporation, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party Parties or there are additional defenses available to any Indemnified PartyParties, such the Indemnified Party Parties shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified PartyParties, at which counsel shall be reasonably acceptable to the Surviving Corporation's expense, and Purchaser shall cause the Surviving Corporation to pay the reasonable fees and expenses of such counsel, as accrued and in advance of the final disposition of such Action to the full extent permitted by applicable law; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the reasonable fees and expenses of more than one counsel for all Indemnified Parties in any single Action except to the extent that the Surviving Corporation and any Indemnified Party have conflicting interests in any single the outcome of such Action. .
(c) The Surviving Corporation shall keep in effect for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time which have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) all provisions in the Surviving Corporation's Certificate of Incorporation and By-Laws that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company to the fullest extent permitted by the DGCL and such provisions shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheldamended except as either required by applicable law or to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses.
(fd) If Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until or the Surviving Corporation is unable or any of their respective successors or assigns (i) shall consolidate with or merge into any other corporation or other entity and shall not be the continuing or surviving corporation or entity of the consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to satisfy its indemnification any individual, corporation or other entity, then and in each such case, proper provisions shall be made so that the successors and assigns of Purchaser or the Surviving Corporation shall assume all of the obligations under set forth in this Section 8.6. -----------6.8.
(e) The provisions of this Section 6.8 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Samples: Merger Agreement (Osullivan Industries Holdings Inc)
Insurance Indemnity. (a) For six years from From and after the Effective Time, the Surviving Corporation shall maintain in effect the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; providedwill indemnify, however, that in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify defend and hold harmless, to the fullest extent permitted that the Company would be required under its presently existing Articles of incorporation, presently existing by-laws and applicable law, each person who is, is now or has been at any time was prior to the date hereof an officer or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiaryof its Subsidiaries (individually, an "Indemnified Party" and collectively, the "Indemnified Parties"), against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedings, ------ arbitrations, investigations proceeding or audits (collectively, "Litigation") investigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts such occurring at or omissions occurred prior to the Effective Time. Without limiting In the event of any such claim, action, suit, proceeding or investigation (an "Action"), any Indemnified Party wishing to claim indemnification will promptly notify the Surviving Corporation thereof (provided that failure to so notify the Surviving Corporation will not affect the obligations of the Surviving Corporation to provide indemnification except to the extent that the Surviving Corporation shall have been prejudiced as a result of such failure). With respect to any Action for which indemnification is requested, the Surviving Corporation will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Surviving Corporation may assume the defense thereof, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Surviving Corporation to the Indemnified Party of its election to assume the defense of an Action, the Surviving Corporation will not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, other than as provided below. The Surviving Corporation will not settle any Actions without the consent of the Indemnified Party where such settlement includes an admission of civil or criminal liability on behalf of an officer or director or requires any payment to be made by the Indemnified Party. The Indemnified Party will have the right to employ counsel in any Action, but the fees and expenses of such counsel incurred after notice from the Surviving Corporation of its assumption of the defense thereof will be at the expense of the Indemnified Party, unless (i) the employment of counsel by the Indemnified Party has been authorized by the Surviving Corporation in writing, (ii) the Indemnified Party will have reasonably concluded upon the advice of counsel that there may be a conflict of interest between the Indemnified Party and the Surviving Corporation in the conduct of the defense of an Action, or (iii) the Surviving Corporation shall not in fact have employed counsel to assume the defense of an Action, in each of which cases the reasonable fees and expenses of counsel selected by the Indemnified Party will be at the expense of the Surviving Corporation. Notwithstanding the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall will not be liable for any settlement effected without its written consent, which consent shall will not be unreasonably withheld, conditioned or delayed, and the Surviving Corporation will not be withheldobligated pursuant to this Section 6.9(a) to pay the fees and disbursements of more than one counsel (including local counsel) for all Indemnified Parties in any single Action, except to the extent two or more of such Indemnified Parties have conflicting interests in the outcome of such action.
(fb) Purchaser shall have no obligations under Section 8.6(c)For a period of six years after the Effective Time, unless and -------------- until the Surviving Corporation is unable will maintain officers' and directors' liability insurance covering the Indemnified Parties who are currently covered, in their capacities as officers and directors, by the Company's existing officers' and directors' liability insurance policies on terms substantially no less advantageous to satisfy the Indemnified Parties than such existing insurance; provided, however, that the Surviving Corporation will not be required in order to maintain or procure such coverage to pay premiums on an annualized basis in excess of 200% of the current annual premium paid by the Company for its indemnification obligations under existing coverage (the "Cap") (which current annual premium the Company represents and warrants to be approximately $100,000); and provided, further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the Cap, the Surviving Corporation will only be required to obtain as much coverage as can be obtained by paying premiums on an annualized basis equal to the Cap.
(c) The provisions of this Section 8.6. -----------6.9 will survive the consummation of the Merger and expressly are intended to benefit each of the Indemnified Parties covered by such Section.
Appears in 1 contract
Samples: Merger Agreement (Norwood Promotional Products Inc)
Insurance Indemnity. (a) For six years All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time existing in favor of the current or former directors or officers of the Company or each of its Subsidiaries as provided in their respective articles of incorporation or bylaws (or comparable organizational documents) or contracts for indemnification in the form of those agreements in effect as of the date hereof will be assumed by the Surviving Corporation and the Surviving Corporation will be directly responsible for such indemnification, without further action, as of the Effective Time and such indemnification will continue in full force and effect in accordance with their respective terms until the expiration of all periods in which claims may be made thereunder pursuant to applicable statutes of limitation, notwithstanding any change to the articles of incorporation or bylaws pursuant to this Agreement (including Section 2.4) or at any time after the Offer Completion Date. In addition, from and after the Effective Time, directors and officers of the Company who become or remain directors or officers of the Surviving Corporation shall will be entitled to the same indemnity rights and protections (including those provided by directors' and officers' liability insurance) of the Surviving Corporation. Notwithstanding any other provision hereof, the provisions of this Section 5.7 are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives.
(b) The Company and the Surviving Corporation, as applicable, will maintain in effect for not less than six years after the Company's and its Subsidiaries' current Offer Completion Date policies of directors' and officers' liability insurance policies equivalent in all material respects to those maintained by or on behalf of the Company and its Subsidiaries on the date hereof (and having at least the "Policies") covering those persons -------- who same coverage and containing terms and conditions which are no less advantageous to the Persons currently covered by the Policies such policies as insured) with respect to actions matters existing or omissions occurring at or prior to the Effective TimeOffer Completion Date; providedPROVIDED, howeverHOWEVER, that in no event shall -------- ------- if the Surviving Corporation be required to expend in aggregate annual premiums for such insurance at any one year an amount in excess of time during such period exceed 150% of the annual premiums per annum rate of premium currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by each person who is now or has been at any time prior to on the date of this Agreement, or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, then the Surviving Corporation shall control will provide the defense maximum coverage that is then available at an annual premium equal to 150% of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheldrate.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Samples: Merger Agreement (Tech Sym Corp)
Insurance Indemnity. (a) For six five years from the Effective Time, the Surviving Corporation shall maintain in effect the Company's and its Subsidiaries' current directors' and officers' liability insurance policies or replacement policies providing at least equal coverage (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; providedPROVIDED, howeverHOWEVER, that in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided furtherPROVIDED FURTHER, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from From and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "LossesLOSSES") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "LitigationLITIGATION") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by each person who is now or has been at any time prior to the date of this AgreementIf, or who becomes prior to after the Effective Time, an officer, director Purchaser or similar person of the Company Surviving Corporation or any of its Subsidiaries.
their respective successors or assigns (ei) If consolidates with or merges into any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises other person and shall not be the continuing or occurs, the Surviving Corporation shall control the defense surviving corporation or entity of such Action with counsel selected by consolidation or merger or (ii) transfers all or substantially all of its properties or assets to any person, then, in each such case, proper provisions shall be made so that successors and assigns of Purchaser or the Surviving Corporation, providedas the case may be, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate assume such entity's obligations set forth in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------this
Appears in 1 contract
Insurance Indemnity. (a) For six years All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time existing in favor of the current or former directors or officers of the Company or each of its Subsidiaries as provided in their respective articles of incorporation or bylaws (or comparable organizational documents) or contracts for indemnification in the form of those agreements in effect as of the date hereof will be assumed by the Surviving Corporation and the Surviving Corporation will be directly responsible for such indemnification, without further action, as of the Effective Time and such indemnification will continue in full force and effect in accordance with their respective terms until the expiration of all periods in which claims may be made thereunder pursuant to applicable statutes of limitation, notwithstanding any change to the articles of incorporation or bylaws pursuant to this Agreement (including Section 2.4) or at any time after the Offer Completion Date. In addition, from and after the Effective Time, directors and officers of the Company who become or remain directors or officers of the Surviving Corporation shall will be entitled to the same indemnity rights and protections (including those provided by directors' and officers' liability insurance) of the Surviving Corporation. Notwithstanding any other provision hereof, the provisions of this Section 5.7 are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives.
(b) The Company and the Surviving Corporation, as applicable, will maintain in effect for not less than six years after the Company's and its Subsidiaries' current Offer Completion Date policies of directors' and officers' liability insurance policies equivalent in all material respects to those maintained by or on behalf of the Company and its Subsidiaries on the date hereof (and having at least the "Policies") covering those persons -------- who same coverage and containing terms and conditions which are no less advantageous to the Persons currently covered by the Policies such policies as insured) with respect to actions matters existing or omissions occurring at or prior to the Effective TimeOffer Completion Date; provided, however, that in no event shall -------- ------- if the Surviving Corporation be required to expend in aggregate annual premiums for such insurance at any one year an amount in excess of time during such period exceed 150% of the annual premiums per annum rate of premium currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by each person who is now or has been at any time prior to on the date of this Agreement, or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, then the Surviving Corporation shall control will provide the defense maximum coverage that is then available at an annual premium equal to 150% of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheldrate.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Insurance Indemnity. (a) For Parent will cause the -------------------- Surviving Corporation to maintain in effect for not less than six (6) years from after the Effective Time, the Surviving Corporation shall maintain in effect the Company's and its Subsidiaries' current directors' directors and officers' liability insurance policies (or policies of at least the "Policies"same coverage containing terms and conditions no less advantageous to the current and all former directors and officers of the Company) covering those persons -------- who are currently covered by the Policies with respect to actions acts or omissions occurring failures to act prior to the Effective Time, including acts relating to the transactions contemplated by this Agreement; provided, however, that in no event shall Parent and the -------- ------- the Surviving Corporation shall not be required to expend in any one year maintain or obtain policies providing such coverage except to the extent such coverage can be provided at an amount in excess annual cost of no greater than 150% of the most recent annual premiums currently premium paid by the Company prior to the date hereof (the "Cap"); and its Subsidiaries for such insurance coverageprovided, and, provided further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the -------- ------- annual premiums of such insurance coverage exceed such amountCap, Parent or the Surviving Corporation shall only be obligated required to obtain policies with as much coverage as can be obtained by paying an annual premium equal to the greatest coverage available for a cost not exceeding such amountCap.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from From and after the Effective Time, Parent and the -------------- Surviving Corporation shall jointly and severally indemnify and hold harmless, harmless to the fullest extent permitted under applicable lawLaw, each person Person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, officer or director or similar person of the Company or any Subsidiaryof its Subsidiaries (each, an "Indemnified Party"), so long as such Person is, ----------------- or has been, acting within the scope of such Person's employment or fiduciary duties, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedings, ------ arbitrations, investigations proceeding or audits (collectively, "Litigation") investigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by each person who is now whether asserted or has been claimed prior to, at any time prior to the date of this Agreement, or who becomes prior to after the Effective Time. In the event of any such claim, an officeraction, director suit, proceeding or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occursinvestigation, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, which counsel shall be reasonably acceptable to the Indemnified Party; provided, however, that the Indemnified Party -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") ------- shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party Parties or there are additional defenses available to any Indemnified PartyParties, such the Indemnified Party Parties shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at Parties and Parent shall cause the Surviving Corporation's expenseCorporation to pay the reasonable fees and expenses of such counsel, as accrued and in advance of the final disposition of such Action to the fullest extent permitted by applicable Law; provided, however, that the -------- ------- Surviving Corporation shall not be obligated to pay -------- ------- the reasonable fees and expenses of more than one counsel (in addition to any necessary local counsel) for any all Indemnified Party Parties in any single Action except to the extent that Indemnified Parties have conflicting interests in the outcome of such Action.
(c) Parent shall cause the Surviving Corporation to keep in effect in its Amended Articles of Incorporation and Amended and Restated By-Laws provisions at least as favorable as the provisions in the Company's Certificate of Incorporation and By-Laws that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company to the fullest extent permitted by the MBCL, so long as such Person is, or has been, acting within the scope of such Person's employment or fiduciary duties, and such provisions shall not be amended except as either required by applicable Law or to make changes permitted by Law that would enhance the rights of past or present officers and directors to exculpation, indemnification or advancement of expenses.
(d) If Parent or the Surviving Corporation or any of their respective successors or assigns: (i) shall consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall 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 Parent or the Surviving Corporation shall assume all of the obligations set forth in this Section 5.8.
(e) The provisions of this Section 5.8 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives, and shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, pursuant to Law, contract or otherwise. The Surviving Corporation shall not pay all expenses, including attorneys' fees, that may be incurred by any Indemnified Party in enforcing the indemnity obligations provided for in this Section 5.8.
(f) Notwithstanding anything to the contrary in this Section 5.8, neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent, which consent shall not be unreasonably be withheldwithheld or delayed.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Insurance Indemnity. (a) For six years from Licensor and Licensee shall each, at their own cost and expense, maintain and keep in force at all times for each License Area during the Effective Timeapplicable License Period:
(i) commercial general public liability insurance, under a policy for the benefit of and naming Licensor, Licensee, the Surviving Corporation shall maintain landlord under the applicable Lease (and such landlord's lender and property manager, if identified in effect writing) as additional insureds, covering any liability for bodily injury, personal injury (including death) and property damage arising out of Licensor's or Licensee's operations, its assumed liability under this Master License Agreement (including contractual indemnities), and their respective use, manner of use and occupancy of, in the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (case of Licensor, the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; provided, however, that in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coveragePremises, and, provided furtherin the case of Licensee, that the License Area, or other portions of the Premises utilized by Licensee, e.g., for access, lavatory use), with limits of liability thereunder of not less than the amount of $5 million, combined single limit; such insurance may be carried under a blanket policy covering the aforementioned areas and other locations of Licensor and Licensee, respectively, if the -------- ------- annual premiums required amount of such coverage for the Premises and License Area is not affected as a result of a claim involving another location;
(ii) property insurance coverage exceed such amountcovering all trade fixtures, office equipment, merchandise and other items of Licensor's or Licensee's property located within, in the case of Licensor, the Surviving Corporation shall be obligated Premises, and, in the case of Licensee, the License Area; and
(iii) Employers' Liability and Worker's Compensation Insurance to obtain policies with the greatest coverage available for extent required by the Laws of each state in which a cost not exceeding such amountLicense Area is located.
(b) The Surviving Corporation Property insurance policies shall keep in effect in its bylaws provisions be written on an "all risk" of physical loss or damage basis, for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary full replacement cost of the Effective Time, until such matters are finally resolved) covered items and in amounts that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) meet any co-insurance clause of the past and present officers and directors policies of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaserinsurance.
(c) Subject Licensee shall include a waiver of Licensee's insurer's rights of subrogation in each of its property insurance policies, and further agrees to Section 8.6(f)such waivers and releases for the benefit of Licensor and the applicable Lease landlord. Licensor shall include, from for the benefit of Licensee, a waiver of Licensor's insurer's rights of subrogation in each of its property insurance policies covering Licensor's property at the Building, and after further agrees to such waivers and releases, for the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person benefit of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnificationLicensee.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- Licensee shall be enforceable by each person who is now or has been at any time prior name Licensor as an additional insured in Licensee's commercial general liability insurance polices with respect to the date of this AgreementPremises, or who becomes prior and Licensor shall name Licensee as an additional insured in Licensor's commercial general liability insurance polices with respect to the Effective Time, an officer, director or similar person of the Company or any of its SubsidiariesPremises.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, Promptly after the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Partydate hereof and thereafter, at least 15 days before the Indemnified Party's expenseeffective date of renewal of any such policy, as applicable, Licensee shall deliver to Licensor, and Licensor shall deliver to Licensee, duplicate originals of the aforesaid policies, or a certificate evidencing such insurance. Notwithstanding The policies or certificates, as the foregoingcase may be, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, shall contain an endorsement that such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall insurance may not be obligated canceled or modified except upon 30 days' prior notice to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheldLicensor.
(f) Purchaser shall have no obligations Notwithstanding the foregoing, Licensee (but only so long as Licensee is the named Licensee (or any affiliate or subsidiary insured under Section 8.6(c)the named Licensee's (or, unless if applicable, the named Licensee's_Parent's) self-insurance policy) and -------------- until the Surviving Corporation is unable named Licensor (or any affiliate or subsidiary insured under the named Licensor's (or, if applicable, the named Licensor's Parent's) self-insurance policy) may, upon notice to satisfy its indemnification obligations under this Section 8.6. -----------the other, elect to self-insure and be liable to cover any claims which would otherwise be payable hereunder by a third-party insurer.
Appears in 1 contract
Samples: Master License Agreement (PWCC LTD)
Insurance Indemnity. TENANT shall not do anything in or about the Premises, which will in any way impair or invalidate the obligation of any policy of insurance on or in reference to the Premises or the Building.
(aA) For six years from During the Effective Timeentire term of this Lease or any extension thereof, the Surviving Corporation TENANT shall maintain keep in effect the Company's full force and effect, at its Subsidiaries' current directors' and officers' expense, a policy or policies of public liability insurance policies (the "Policies") covering those persons -------- who are currently covered issued by the Policies an insurer or insurers approved by LANDLORD, with respect to actions the Premises and the business of TENANT and any subtenant, licensees or omissions occurring concessions on terms approved in writing by LANDLORD, in which both TENANT and LANDLORD shall be covered under reasonable limits of liability of not less than FIVE HUNDRED THOUSAND and 00/100 ($500,000.00) DOLLARS for injury or death to any one (1) person and ONE MILLION and 00/100 ($1,000,000.00) DOLLARS for injury or death to more than one (1) person, and ONE HUNDRED THOUSAND and 00/100 ($100,000.00) DOLLARS with respect to property damage.
(B) TENANT shall furnish LANDLORD with certificates of coverage issued by the insurance carriers providing coverage to LANDLORD as hereinabove provided and such insurance policies and certificates issued to LANDLORD by the insurers as evidence of such coverage shall be endorsed substantially as follows: "It is understood and agreed that the insurer will give to the LANDLORD, thirty (30) days prior written notice of any material change in or cancellation of this policy." Renewal policies or certificates evidencing such insurance shall be furnished at least ten (10) days prior to the Effective Time; providedexpiration of the respective insurance policies. Tenant shall provide to Landlord, howeverannually, a renewed and valid Certificate of Insurance showing at least the above-mentioned limits of coverage, and naming Landlord as an additional insured.
(C) TENANT agrees that the use by itself, its agent, contractors, employees, invitees and servants of the Premises and the Building and the facilities therein is at its own risk and hereby releases LANDLORD and its agents, servants, contractors and employees from all claims and demands of every kind resulting from any accident, damage or injury occurring therein except if such claim should arise from the LANDLORD'S negligence or willful misconduct.
(D) TENANT agrees to indemnify and save harmless the LANDLORD from and against any and all claims and demands of third persons (including but not limited to, those for death, for personal injuries, or for loss of or damage to property) arising, directly or indirectly, out of or in no event connection with the business conducted in the Premises or (without limiting the foregoing) as a result of any acts, omissions or negligence of TENANT, or any concessionaire, or their respective contractors, licensees, invitees, agents, servants or employees in or about the Premises, and from and against all costs, expenses and liability (including but not restricted to, reasonable counsel fees and disbursements) occurring in or in connection with any such claim or proceeding brought thereon, excluding claims resulting from LANDLORD'S negligence or willful misconduct.
(E) LANDLORD shall -------- ------- not be responsible or liable to TENANT for any loss or damage that may be occasioned by or through the Surviving Corporation be required acts or omissions of persons occupying adjoining premises or any part of the premises adjacent to expend or connected with the Premises or any part of the Building or of any persons transacting any business in the Building or present in the Building for any other purpose or for any loss or damage resulting to TENANT or its property from any burst, stopped or leaking water, gas, sewer, sprinkler, steam or other pipes or plumbing fixtures or from any failure of or defect in any one year electric line, circuit or facility, unless caused by or resulting from Landlord's negligence or willful misconduct.
(F) LANDLORD shall secure fire insurance and Standard Extended Coverage in an acceptable amount in excess of 150% of so as to provide "full insurable value" on the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums entire Building. The aggregate premium cost of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated pro rated to obtain policies with TENANT as its proportionate share of Common Costs, and any increase in premium over the greatest coverage available for a cost not exceeding such amountbase year of 1998, shall be payable monthly by Tenant as Additional Rent, all as set forth in Article III.
(bG) The Surviving Corporation LANDLORD shall keep in effect in its bylaws provisions secure general liability insurance affecting the common areas against claims for a period of not less than six years from the Effective Time (orbodily injuries, death or property damage pertaining to said common areas in the case amounts of matters occurring prior at least $1,000,000.00/$3,000,000.00 and $500,000.00 for property damage. The aggregate premium cost of such insurance coverage shall be pro rated to the Effective Time that have not been resolved prior to the sixth anniversary TENANT as its proportionate share of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, common costs and shall observe the indemnification agreements existing be payable by TENANT as Additional Rent all as set forth in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to PurchaserArticle III.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Insurance Indemnity. (a) For six years from At the Effective Time, the certificate of incorporation and bylaws of the Surviving Corporation will include indemnification provisions substantially equivalent to those contained in the certificate of incorporation and bylaws of the Company as of the date of this Agreement. The indemnification provisions in the certificate of incorporation and bylaws of the Surviving Corporation shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of individuals who as of the date hereof were directors, officers, employees, fiduciaries or agents of the Company or its Subsidiaries or who otherwise would be entitled to indemnification under the certificate of incorporation, bylaws or indemnification agreements of the Company or its Subsidiaries (the "INDEMNIFIED PARTIES"). Notwithstanding any other provision hereof, the provisions of this Section 5.7 are intended to be for the benefit of, and will be enforceable by, each Indemnified Party, his or her heirs and his or her representatives.
(b) The Company and the Surviving Corporation, as applicable, will maintain in effect for not less than six years after the Company's and its Subsidiaries' current Offer Completion Date policies of directors' and officers' liability insurance policies (containing terms and conditions with respect to coverage and amount which are no less advantageous to the "Policies") covering those persons -------- who are Persons currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; provided, however, that in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries as insured) with respect to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law matters existing or except to make changes permitted by law that would enhance the rights of past occurring at or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, liabilities, costs or expenses (including attorneys' feesOffer Completion Date; provided that in satisfying its obligations under this Section 5.7(b), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- annual premiums in excess of 200% of the fees and expenses of more than one counsel amount per annum the Company paid for any Indemnified Party in any single Action. The the fiscal year ending December 31, 1999, and; PROVIDED FURTHER, that if the premium for such coverage exceeds such amount, Parent or the Surviving Corporation shall not be liable purchase a policy with the greatest coverage available for any settlement effected without such 200% of the amount spent per annum by the Company for its written consentfiscal year ending December 31, which consent shall not unreasonably be withheld1999.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Insurance Indemnity. (a) For six years The Company will purchase from an insurer reasonably acceptable to Purchaser a six-year pre-paid noncancellable directors’ and officers’ insurance policy covering the Effective Time, current and all former directors or officers of the Surviving Corporation shall maintain in effect the Company's Company and its Subsidiaries' current directors' , and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies their heirs and representatives, with respect to actions acts or omissions occurring failures to act prior to the Effective Time, in a single aggregate amount over the six-year period immediately following the Closing Date equal to the policy limits for the Company’s and its Subsidiaries’ current directors’ and officers’ insurance policies as in effect on the date hereof; provided, however, that in no event the Company shall -------- ------- the Surviving Corporation not be required to expend in any one year an amount in excess obtain a policy providing such coverage except to the extent that such coverage can be provided at a total cost of 150no greater than 300% of the annual premiums currently premium paid by the Company and its Subsidiaries for such insurance coveragein 2007 (the “Cap”), and, provided furtherif equivalent coverage cannot be obtained, that if or can be obtained only by paying a total premium in excess of the -------- ------- annual premiums of such insurance coverage exceed such amountCap, the Surviving Corporation Company shall only be obligated required to obtain policies with as much coverage as can be obtained by paying a total premium equal to the greatest coverage available for a cost not exceeding such amountCap.
(b) The Surviving Corporation shall keep honor all of the Company’s obligations to indemnify and hold harmless, to the extent not paid by insurance, the present and former officers and directors of the Company in effect in its bylaws provisions for a period respect of not less than six years from the Effective Time (or, in the case of matters acts or omissions occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary extent, subject to applicable Law, provided under the DGCL and the Company’s certificate of incorporation and bylaws in each case as in effect on the date hereof, regardless of whether such certificate of incorporation or bylaws are hereafter amended, and such obligations shall survive the Merger and continue in full force and effect from the Effective Time, Time until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and six years after the Effective Time, the -------------- . The Surviving Corporation shall indemnify and hold harmlessperiodically advance expenses as incurred with respect to the foregoing, until six years after the Effective Time, to the fullest extent permitted under applicable lawLaw, provided, that the person to whom the expenses are advanced provides an undertaking reasonably acceptable to the Surviving Corporation to repay such advance if it is ultimately determined that such person is not entitled to reimbursement of such expenses.
(c) From and after the Effective Time, Purchaser shall, until six years after the Effective Time, indemnify and hold harmless, to the extent not paid by insurance or by the Surviving Corporation pursuant to its obligation to provide indemnification under Section 7.6(b), to the fullest extent permitted under applicable Law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, officer or director or similar person of the Company or any Subsidiary, and their heirs and representatives (collectively, “Indemnified Parties”), against all losses, claims, damages, liabilities, reasonable costs or expenses (including attorneys' ’ fees), judgments, fines, penalties and amounts paid in settlement (collectively, "“Losses"”) in connection with from any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "“Litigation"”) arising ---------- before or after the Effective Time out as a result of or pertaining to acts or omissions, or alleged acts or omissions, by them in to the extent attributable to their capacities as such, which acts or omissions occurred prior to the Effective TimeTime (including the transactions provided for herein and in the Voting and Support Agreement); provided, however, that in no event shall Purchaser be required to indemnify any Indemnified Parties for Losses arising out of such Indemnified Parties’ gross negligence, wanton malfeasance, willful or illegal conduct or conduct that was intentionally injurious to the Company. Without limiting the foregoing, Purchaser shall, to the extent not advanced by the Surviving Corporation shall pursuant to Section 7.6(b), periodically advance expenses as incurred with respect to the foregoing foregoing, until six years after the Effective Time, to the fullest extent permitted under applicable law Law provided that the person to whom the expenses are advanced provides an undertaking reasonably acceptable to the Surviving Corporation to repay such advance if it is ultimately determined that such person is not entitled to indemnificationreimbursement of such expenses.
(d) If, after the Effective Time, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties or assets to any Person, then, in each such case, proper provisions shall be made so that successors and assigns of Purchaser or the Surviving Corporation, as case may be, shall assume all of the obligations set forth in this Section 7.6. The provisions of this Section 8.6 7.6 are intended for the benefit of and ----------- and, as of the Effective Time, shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation obligation to indemnify described in Section 8.6(c7.6(a) (each, an "“Action"”) -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party which counsel shall be reasonably acceptable to any Indemnified Party seeking indemnification pursuant to Section 8.6(c) (each7.6(c), an "provided that the Indemnified -------------- ----------- Party") Party shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's ’s expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's ’s expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any all Indemnified Party Parties in any single Action except to the extent that two or more of such Indemnified Parties have conflicting interests in the outcome of such Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Samples: Merger Agreement (United Online Inc)
Insurance Indemnity. (a) For six years from After the Effective Time, the Surviving Corporation shall maintain in effect the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; providedwill indemnify, however, that in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify defend and hold harmless, to the fullest extent permitted that the Company would be required under its presently existing articles of incorporation, bylaws and applicable law, each person who is, is now or has been at any time was prior to the date hereof an officer or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiaryof its Subsidiaries (individually, an "Indemnified Party" and collectively, the "Indemnified Parties"), against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedings, ------ arbitrations, investigations proceeding or audits (collectively, "Litigation") investigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts such occurring at or omissions occurred prior to the Effective Time. Without limiting In the event of any such claim, action, suit, proceeding or investigation (an "Action"), any Indemnified Party wishing to claim indemnification will promptly notify the Surviving Corporation thereof (provided that failure to so notify the Surviving Corporation will not affect the obligations of the Surviving Corporation to provide indemnification except to the extent that the Surviving Corporation shall have been prejudiced as a result of such failure). With respect to any Action for which indemnification is requested, the Surviving Corporation will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Surviving Corporation may assume the defense thereof, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Surviving Corporation to the Indemnified Party of its election to assume the defense of an Action, the Surviving Corporation will not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, other than as provided below. The Surviving Corporation will not settle any Actions without the consent of the Indemnified Party where such settlement includes an admission of civil or criminal liability on behalf of an officer or director or requires any payment to be made by the Indemnified Party. The Indemnified Party will have the right to employ counsel in any Action, but the fees and expenses of such counsel incurred after notice from the Surviving Corporation of its assumption of the defense thereof will be at the expense of the Indemnified Party, unless (i) the employment of counsel by the Indemnified Party has been authorized by the Surviving Corporation in writing, (ii) the Indemnified Party will have reasonably concluded upon the advice of counsel that there may be a conflict of interest between the Indemnified Party and the Surviving Corporation in the conduct of the defense of an Action, or (iii) the Surviving Corporation shall not in fact have employed counsel to assume the defense of an Action, in each of which cases the reasonable fees and expenses of counsel selected by the Indemnified Party will be at the expense of the Surviving Corporation. Notwithstanding the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall will not be liable for any settlement effected without its written consent, which consent shall will not be unreasonably withheld, conditioned or delayed, and the Surviving Corporation will not be withheldobligated pursuant to this Section 6.9(a) to pay the fees and disbursements of more than one counsel (including local counsel) for all Indemnified Parties in any single Action, except to the extent two or more of such Indemnified Parties have conflicting interests in the outcome of such action.
(fb) Purchaser shall have no obligations under Section 8.6(c)For a period of six years after the Effective Time, unless and -------------- until the Surviving Corporation is unable will maintain officers' and directors' liability insurance covering the Indemnified Parties who are currently covered, in their capacities as officers and directors, by the Company's existing officers' and directors' liability insurance policies on terms substantially no less advantageous to satisfy the Indemnified Parties than such existing insurance; provided, however, that the Surviving Corporation will not be required in order to maintain or procure such coverage to pay premiums on an annualized basis in excess of 200% of the current annual premium paid by the Company for its indemnification obligations under existing coverage (the "Cap") (which current annual premium the Company represents and warrants to be approximately $100,000.00); and provided, further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the Cap, the Surviving Corporation will only be required to obtain as much coverage as can be obtained by paying premiums on an annualized basis equal to the Cap.
(c) The provisions of this Section 8.6. -----------6.9 will survive the consummation of the Merger and expressly are intended to benefit each of the Indemnified Parties covered by such Section.
Appears in 1 contract
Samples: Merger Agreement (STV Group Inc)
Insurance Indemnity. (a) For six years from the Effective Time, the Surviving Corporation shall maintain in effect the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; provided, however, that in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from From and after the Effective Time, the -------------- Surviving Corporation shall indemnify IR will indemnify, defend and hold harmless, harmless to the fullest extent that ZT would have been permitted under applicable law, law each person who isis now, or has been at any time prior to before the date hereof or who becomes prior to the Effective Timeof this Agreement, an officerofficer or director of ZT (individually, director or similar person of an "Indemnified Party" and collectively, the Company or any Subsidiary"Indemnified Parties"), against all losses, claims, damages, liabilities, costs or expenses (including reasonable attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedings, ------ arbitrations, investigations proceeding or audits (collectively, "Litigation") investigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts such occurring at or omissions occurred prior to before the Effective Time. Without limiting In the foregoingevent of any such claim, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
action, suit, proceeding or investigation (d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action"),
(1) -------------- ------ arises or occurs, any Indemnified Party wishing to claim indemnification must promptly notify IR thereof,
(2) IR must pay the Surviving Corporation shall control the defense reasonable fees and expenses of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party which counsel shall be reasonably acceptable to IR, in advance of the final disposition of any such Action to the full extent permitted to participate by applicable law, upon receipt of any undertaking required by applicable law, and
(3) IR will cooperate in the defense of any such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expensematter; provided, however, PROVIDED that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall IR will not be liable for any settlement effected without its written consentconsent and PROVIDED, which consent FURTHER, that IR shall not unreasonably be withheldobligated pursuant to this Section to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single Action except to the extent that in the opinion of counsel for the Indemnified Parties reasonably satisfactory to IR, two or more of such Indemnified Parties have conflicting interests in the outcome of such action.
(fb) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until IR must cause the Surviving Corporation of the Merger or its successor to keep in effect for seven years provisions in its certificate of incorporation and bylaws providing for indemnification of the Indemnified Parties that is unable substantially the same as is currently set forth in the ZT Certificate of Incorporation and bylaws, giving effect for any successor to satisfy the laws of the state of incorporation of such successor.
(c) For seven years after the Effective Time, IR must cause to be maintained officers' and directors' liability insurance covering the Indemnified Parties who are currently covered, in their capacities as officers and directors, by ZT's existing officers' and directors' liability insurance policies on terms substantially no less advantageous to the Indemnified Parties than such existing insurance; PROVIDED that IR will not be required to pay an annual premium in excess of one and one-half times the current annual premium paid by ZT for its indemnification obligations under existing coverage (the "Cap") in order to maintain or procure such coverage; and PROVIDED, FURTHER, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the Cap, IR will only be required to obtain as much coverage as can be obtained by paying an annual premium equal to the Cap.
(d) For two years after the Effective Time, IR must cause to be maintained either ZT's present insurance policy covering ZT's Retirement Savings Plan or a new policy with substantially similar terms, which may be an insurance policy that covers IR and its Subsidiaries.
(e) The provisions of this Section 8.6. -----------will survive the consummation of the Merger and expressly are intended to benefit each of the Indemnified Parties.
Appears in 1 contract
Samples: Merger Agreement (International Rectifier Corp /De/)
Insurance Indemnity. (a) For Parent shall, or shall cause the Surviving Corporation to, maintain in effect for not less than six years from after the Effective Time the current directors' and officers' insurance policies (or policies containing substantially similar coverage) of the Company with respect to acts or failures to act prior to or as of 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 payment of claims thereunder); provided, however, that in order to maintain or procure such coverage, neither Parent nor the Surviving Corporation, as applicable, shall be required to pay, in the -42- 48 aggregate, an annual premium (which premiums are hereby represented and warranted by the Company to be $430,000) in excess of 200% of the current annual premium paid by the Company for its existing coverage (the "Cap Amount"); and provided, further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the Cap Amount, Parent 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 Cap Amount and, provided, further, that Parent may substitute therefor policies of Parent containing terms with respect to coverage and amount no less favorable to such directors and officers. From and after the Effective Time, the Surviving Corporation shall maintain in effect the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; provided, however, that in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, and provide advancement of expenses to, to the fullest extent permitted under applicable law, each person who is, is a current or has been at any time prior to the date hereof former officer or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiaryof its Subsidiaries (each, an "Indemnified Party") against all losses, claims, damages, liabilities, costs or expenses (including reasonable attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedings, ------ arbitrations, investigations proceeding or audits (collectively, "Litigation") investigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting In the foregoingevent of any such claim, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
action, suit, proceeding or investigation (d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs), the Surviving Corporation indemnifying party shall control the defense of such Action with counsel selected by the Surviving Corporationit; provided, providedhowever, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with through counsel selected by it at the Indemnified Party, at the Surviving Corporation's expense; provided.
(b) Parent agrees that the provisions of the Company's Certificate of Incorporation and By-laws in effect as of the date of this Agreement affecting the Indemnified Parties' rights to indemnification, however, that limitation of liability and advancement of expenses shall be included in the Certificate of Incorporation and By-laws of the Surviving Corporation and shall not be obligated continue in full force and effect, without any amendment thereto (unless required by DGCL or federal law), for a period of six years from the Effective Time. Following the Effective Time, Parent agrees to pay -------- ------- cause the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for to comply with, and assume the obligations under, any settlement effected without indemnification agreement in existence at the Effective Time between the Company and any of its written consentofficers, which consent shall not unreasonably be withhelddirectors or other employees or consultants.
(fc) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under The provisions of this Section 8.6. -----------6.7 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Samples: Merger Agreement (Merck & Co Inc)
Insurance Indemnity. (a) For six years from NBO shall obtain and maintain, during the Effective Timeentire Term hereof, the Surviving Corporation shall maintain in effect the Company's and its Subsidiaries' current directors' and officers' commercial general liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; provided, however, that in no event shall -------- ------- the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverage, and, provided further, that if the -------- ------- annual premiums including broad form contractual liability and completed operations coverage with limits of such liability for personal injury to or death of persons and damage to or loss or destruction of property with a single limit of not less than $2,000,000 per occurrence. All insurance coverage exceed such amount, the Surviving Corporation required hereunder shall be obligated to obtain policies with provided by responsible insurers rated at least A and X in the greatest coverage available for a cost not exceeding such amountthen current edition of Best's Insurance Guide and shall be licensed in the State in which the Center is located. NBO's insurance shall be primary, and any insurance maintained by Owner or any other additional insureds hereunder shall be excess and noncontributory.
(b) NBO shall provide Owner with a certificate of insurance naming Owner, Owner's managing agent ("Agent") and such other parties as Owner may from time to time designate as additional insureds and showing the required insurance coverage is in full force and effect at all times during the Term hereof and, when requested by Owner, evidence that all premiums for such coverage have been paid in full. The Surviving Corporation certificate shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time provide that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions coverage shall not be amended except as required cancelled or reduced without thirty (30) days' prior notice to Owner. All insurance shall be issued by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed reputable companies licensed in the Disclosure Letter and copies of State in which have been previously provided to Purchaserthe Center is located.
(c) Subject to Section 8.6(f)NBO shall indemnify, defend and hold harmless Owner, Agent and their respective present and former general and limited partners, members, affiliates, trustees, beneficiaries, directors, officers, agents and employees from and after the Effective Timeagainst any claims, the -------------- Surviving Corporation shall indemnify and hold harmlessdemands, to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any Subsidiary, against all losses, claims, damages, injuries, liabilities, costs or expenses (including attorneys' fees)expenses, judgments, finesliens, penalties encumbrances, orders and amounts paid in settlement (collectivelyawards, "Losses") in connection together with any claims, actions, suits, proceedings, ------ arbitrations, investigations or audits (collectively, "Litigation") arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting the foregoing, the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the reasonable attorneys' fees and expenses arising out of more than one counsel the ownership or operation of the Counter Unit, including, without limitation, those arising on account of (i) injury to (including, without limitation, advertising and libel injury) or death of any person, including agents and employees, (ii) loss of or damage to property, (iii) claims of subcontractors, suppliers or workmen, (iv) royalties, license fees and claims for patent and copyright infringement, and (v) claims against Owner for indemnity or contribution arising by reason of any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheldof the foregoing.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until the Surviving Corporation is unable to satisfy its indemnification obligations under this Section 8.6. -----------
Appears in 1 contract
Samples: Mall Management Agreement (Nbo Inc)
Insurance Indemnity. (a) For USPI shall cause the Surviving Corporation to maintain in effect for not less than six years from after the Effective Time, the Surviving Corporation shall maintain in effect the CompanyOPC's current directors and its Subsidiaries' current directors' and officers' liability officers insurance policies (or policies of at least the "Policies"same coverage containing terms and conditions no less advantageous to the current and all former directors and officers of OPC) covering those persons -------- who are currently covered by the Policies with respect to actions acts or omissions occurring failures to act prior to the Effective Time; provided, however, that in no event order to maintain or procure such coverage, USPI shall -------- ------- the Surviving Corporation not be required to expend in any one year pay an amount annual premium in excess of 150% of two times the current annual premiums currently premium paid by OPC for its existing coverage (the Company "Cap"); and its Subsidiaries for such insurance coverageprovided, and, provided further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the -------- ------- annual premiums of such insurance coverage exceed such amountCap, the Surviving Corporation USPI shall only be obligated required to obtain policies with the greatest as much coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior as can be obtained by paying an annual premium equal to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from Cap. From and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, harmless to the fullest extent permitted under applicable law, each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, officer or director or similar person of the Company OPC or any Subsidiaryof its Subsidiaries (each, an "Indemnified Party") against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedings, ------ arbitrations, investigations proceeding or audits (collectively, "Litigation") investigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting In the foregoingevent of any such claim, action, suit, proceeding or investigation (an "Action"), (i) the Surviving Corporation shall periodically advance pay the reasonable fees and expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, provided, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at which counsel shall be reasonably acceptable to the Indemnified Party's expense. Notwithstanding Surviving Corporation, in advance of the foregoingfinal disposition of any such Action to the full extent permitted by applicable law, if there is upon receipt of any actual or potential conflict between undertaking required by applicable law, and (ii) the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate cooperate in the defense of any such Action with counsel selected by the Indemnified Party, at the Surviving Corporation's expensematter; provided, however, provided that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall it will not be liable for any settlement effected without its written consent, consent (which consent shall not be unreasonably be withheld.
(f) Purchaser shall have no obligations under Section 8.6(c), unless and -------------- until ; provided further that the Surviving Corporation is unable shall not be obligated pursuant to satisfy its indemnification obligations under this Section 8.6to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single Action except to the extent that, in the opinion of counsel for the Indemnified Parties, two or more of such Indemnified Parties have conflicting interests in the outcome of such Action. -----------The rights of each Indemnified Party hereunder shall be in addition to any other rights the Indemnified Party may have under the Certificate of Incorporation or Bylaws of the Surviving Corporation, under the DGCL or otherwise. The provisions of this Section shall survive the consummation of the Merger and expressly are intended to benefit each of the Indemnified Parties.
Appears in 1 contract
Samples: Merger Agreement (United Surgical Partners International Inc)
Insurance Indemnity. (a) For The Surviving Corporation shall, and, if applicable, Parent shall cause the Surviving Corporation to, maintain in effect for not less than six years from after the Effective Time the current directors' and officers' insurance policies (or policies containing substantially similar coverage) of the Company with respect to acts or failures to act prior to or as of 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 payment of claims thereunder); provided, however, that in order to maintain or procure such coverage, neither Parent nor the Surviving Corporation, as applicable, shall be required to pay, in the aggregate, an annual premium in excess of 200% of the current annual premium paid by Parent or the Company for its existing coverage (the "CAP AMOUNT"); and provided, further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the Cap Amount, the Parent 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 Cap Amount. From and after the Effective Time, the Surviving Corporation shall, and, if applicable, Parent shall maintain in effect the Company's and its Subsidiaries' current directors' and officers' liability insurance policies (the "Policies") covering those persons -------- who are currently covered by the Policies with respect to actions or omissions occurring prior to the Effective Time; provided, however, that in no event shall -------- ------- cause the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company and its Subsidiaries for such insurance coverageto, and, provided further, that if the -------- ------- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount.
(b) The Surviving Corporation shall keep in effect in its bylaws provisions for a period of not less than six years from the Effective Time (or, in the case of matters occurring prior to the Effective Time that have not been resolved prior to the sixth anniversary of the Effective Time, until such matters are finally resolved) that provide for exculpation of director and officer liability and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company and its Subsidiaries to the fullest extent permitted by the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enhance the rights of past or present officers and directors to indemnification or advancement of expenses, and shall observe the indemnification agreements existing in favor of past and present officers and directors of the Company and its Subsidiaries, each of which are listed in the Disclosure Letter and copies of which have been previously provided to Purchaser.
(c) Subject to Section 8.6(f), from and after the Effective Time, the -------------- Surviving Corporation shall indemnify and hold harmless, and provide advancement of expenses to, to the fullest extent permitted under applicable law, each person who is, is a current or has been at any time prior to the date hereof former officer or who becomes prior to the Effective Time, an officer, director or similar person of the Company or any SubsidiarySubsidiaries (each, an "INDEMNIFIED PARTY") against all losses, claims, damages, liabilities, costs or expenses (including reasonable attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "Losses") in connection with any claimsclaim, actionsaction, suitssuit, proceedings, ------ arbitrations, investigations proceeding or audits (collectively, "Litigation") investigation arising ---------- before or after the Effective Time out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time. Without limiting In the foregoingevent of any such claim, action, suit, proceeding or investigation (an "ACTION"), the Surviving Corporation shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification.
(d) The provisions of this Section 8.6 are intended for the benefit of and ----------- shall be enforceable by 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, director or similar person of the Company or any of its Subsidiaries.
(e) If any Litigation described in Section 8.6(c) (each, an "Action") -------------- ------ arises or occurs, the Surviving Corporation indemnifying party shall control the defense of such Action with counsel selected by the Surviving Corporationit; provided, providedhowever, that the -------- party seeking indemnification pursuant to Section 8.6(c) (each, an "Indemnified -------------- ----------- Party") shall be permitted to participate in the defense of such Action through ----- counsel selected by the Indemnified Party, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any actual or potential conflict between the Surviving Corporation and any Indemnified Party or there are additional defenses available to any Indemnified Party, such Indemnified Party shall be permitted to participate in the defense of such Action with through counsel selected by it at the Indemnified Party, at the Surviving Corporation's expense; provided, however, that the Surviving Corporation shall not be obligated to pay -------- ------- the fees and expenses of more than one counsel for any Indemnified Party in any single Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(fb) Purchaser Parent agrees that, in the event the Alternative Merger is consummated, the provisions of the Company Restated Certificate of Incorporation and By-laws in effect as of the date of this Agreement affecting the Indemnified Parties' rights to indemnification, limitation of liability and advancement of expenses shall have no obligations under Section 8.6(csurvive the consummation of the Alternative Merger and shall continue in full force and effect, without any amendment thereto (unless required by DGCL or federal law), unless for a period of six years from the Effective Time. Parent agrees that, in the event the Parent Merger is consummated the Indemnified Parties shall for a period of six years after the Effective Time, be entitled to the benefit of the provisions of Parent's Restated Certificate of Incorporation and -------------- until the Surviving Corporation is unable By-laws relating to satisfy its indemnification obligations under indemnification, limitation of liability and advancement of expenses of officers and directors of Parent.
(c) The provisions of this Section 8.6. -----------6.9 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Samples: Merger Agreement (Sonat Inc)
